Version No. 080
Guardianship and Administration Act 1986
No. 58 of 1986
Version incorporating amendments as at
17 January 2013
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
3
4
1
Purpose
Commencement
Definitions
Objects of Act
1
1
1
12
PART 3—THE PUBLIC ADVOCATE
14
15
16
17
18
18A
The Public Advocate
Functions of the Public Advocate
Powers and duties of the Public Advocate
Staff of office of the Public Advocate
Delegation
Powers of inspection
14
14
14
15
18
18
19
PART 4—GUARDIANSHIP ORDERS
22
Division 1—Application for guardianship order
22
19
20
21
Application for guardianship order
Who is entitled to notice of an application?
Date for hearing
Division 2—Appointment of guardian
22
23
22
22
23
23
Guardianship order
Persons eligible as guardians
23
24
Division 3—Powers and duties of guardian
26
24
25
26
27
28
29
Authority of plenary guardian
Authority of limited guardian
Power to enforce guardianship order
Special powers in respect of persons with a disability
Exercise of authority by guardian
Ancillary powers of guardian
i
26
28
28
29
30
31
Section
30
31
Page
Guardian may seek advice
Notice of death of represented person
Division 4—Temporary orders
32
33
32
Application for temporary order
Temporary order
Division 5—Appointment of alternative guardian
34
35
31
32
32
32
33
Appointment of alternative guardian
Authority of alternative guardian
33
34
Division 5A—Appointment of enduring guardian
35
35A
35B
35C
35D
35E
Appointment of enduring guardian
Authority of enduring guardian
Revocation of appointment by appointor
Revocation of appointment by Tribunal
Advice or direction of Tribunal
35
37
38
39
40
PART 4A—MEDICAL AND OTHER TREATMENT
42
Division 1—Preliminary
42
36
37
38
Persons to whom Part applies
Person responsible
Best interests
42
43
46
Division 2—Consent
39
40
41
42
47
Persons who may consent to medical or other treatment
Effect of consent
Refusal of medical treatment under the Medical Treatment
Act 1988
Unlawful consent to medical or other treatment an offence
Division 3—Emergency treatment
47
48
48
48
49
42A Emergency medical or dental treatment
Division 4—Special procedures
49
50
42B
42C
42D
42E
42F
Application for consent of Tribunal to special procedure
Guidelines for special procedures
Date for hearing
Consent of Tribunal to special procedure
Tribunal may confer authority to consent to continuing or
further special procedure
42G Special procedure without consent of Tribunal an offence
ii
50
51
51
51
52
53
Section
Page
Division 5—Other medical or dental treatment
42H Consent of person responsible
42HA Consent if patient is likely to recover within a reasonable
time
42I Person responsible may seek advice
42J Guidelines for medical or dental treatment
42K Medical or dental treatment without consent of person
responsible
42L Medical or dental treatment if person responsible does not
consent
42M Statement by registered practitioner
42N Application to Tribunal relating to medical or dental treatment
42O Protection of registered practitioner
Division 6—Medical research procedures
42P
42Q
42R
42S
42T
42U
42V
42W
42X
42Y
42Z
Introduction and outline of Division
Step 1—Approval of relevant research project
Step 2—Is patient likely to recover within a reasonable time?
Step 3—Consent of person responsible
Step 4—Procedural authorisation
Best interests
Applications to Tribunal
Person responsible may seek advice
Guidelines for medical research procedures
Offences
Protection of registered practitioner
54
54
54
56
57
57
59
60
61
63
64
64
66
66
67
68
72
73
75
76
76
77
PART 5—ADMINISTRATION ORDERS
79
Division 1—Application for administration order
79
43
44
45
Application for administration order
Who is entitled to notice of an application?
Date for hearing
Division 2—Appointment of administrator
46
47
47A
47B
Appointment of administrator
Persons eligible as administrators
Remuneration of professional administrator
Payment of costs and expenses to administrator or former
administrator from estate
Division 3—Powers and duties of administrator
48
49
50
50A
Power of administrator
Exercise of power by administrator
Ancillary powers of administrator
Power to make gifts
iii
79
79
80
80
80
81
84
84
85
85
86
86
86
Section
Page
51
52
Powers of investment
Restriction on powers of represented person to enter into
contracts etc.
53
Interest of represented person in property not to be altered by
sale or other disposition of property
54
Tribunal may open will
55
Administrator may seek advice
56
Application to the Tribunal by a creditor etc.
57
Power to administrator to act until notice of discharge etc.
received
58
Accounts
58AA
Guardianship and Administration Fund
58AB
Notice of death of represented person
58A
Power to make regulations setting fees
Division 3A—Additional powers and duties of administrators
58B
58C
58D
58E
58F
Powers and duties in relation to represented persons
Exercise of certain powers
Action upon a person ceasing to be a represented person
Represented person entitled to inspection of accounts
Sale of personal effects if unclaimed within 2 years from date
of discharge
58G Power to open will
Division 4—Temporary orders
59
60
60AB
60AC
60AD
60AE
60AF
60AG
60AH
60AI
60AJ
88
89
90
90
91
91
92
94
95
95
96
96
99
101
101
102
102
103
Application for temporary order
Temporary order
PART 5A—ADMINISTRATION ORDERS IN RESPECT OF
THE ESTATE OF A MISSING PERSON
60AA
87
Application for administration in respect of the estate of a
missing person
Appointment of administrator in respect of the estate of a
missing person
Administrator to notify Tribunal
Order to remove an administrator
Duration of order
Application for temporary order
Temporary order
Operation of Part
Application of Parts 5, 6 and 6A
Application of objects of this Act
iv
103
103
105
105
105
107
107
108
109
109
111
112
113
Section
Page
PART 6—REHEARINGS AND REASSESSMENT OF ORDERS
115
Division 1—Rehearings
115
60A
60B
60C
60D
Application for rehearing
Parties and notice
Rehearing
Effect of first instance order pending rehearing
Division 2—Reassessment of orders
61
62
63
118
Reassessment
Who is entitled to notice of a reassessment?
Order after reassessment
PART 6A—INTERSTATE ORDERS
63A
63B
63C
63D
63E
63F
63G
Application of Part
Definitions
Corresponding laws and orders
Ministerial agreements
Registration of interstate orders
Reassessment of interstate orders
Reciprocal arrangements under the State Trustees (State
Owned Company) Act 1994
PART 7—GENERAL PROVISIONS
66
67
Matters before a Court
Effect of setting aside administration order on previous
actions of administrator
70
Immunity from suit
73
Judicial notice
79
Audit
80
General penalty
81
Offences by bodies corporate
81A Supreme Court—Limitation of jurisdiction
82
Regulations
PART 8—AMENDMENTS TO THE PUBLIC TRUSTEE
ACT 1958
83
85
115
116
117
117
Principal Act
Existing protected persons
118
119
121
122
122
122
123
123
123
124
125
126
126
129
129
130
130
131
131
131
131
134
134
134
v
Section
Page
PART 9—TRANSITIONAL PROVISION
86
86A
87
88
Enduring powers of attorney under the Instruments Act 1958
Enduring guardians
Rehearings and reassessments under Part 6
Medical research procedures
__________________
137
137
137
138
138
SCHEDULES
140
SCHEDULE 3—Provisions with Respect to the Public Advocate
141
1
2
3
The Public Advocate
The Acting Public Advocate
Oath or affirmation
141
143
144
SCHEDULE 4—Instruments Relating to Enduring Guardian
145
Form 1—Appointment of Enduring Guardian
145
Form 2—Revocation of Appointment of Enduring Guardian
149
═══════════════
ENDNOTES
150
1. General Information
150
2. Table of Amendments
151
3. Explanatory Details
156
vi
Version No. 080
Guardianship and Administration Act 1986
No. 58 of 1986
Version incorporating amendments as at
17 January 2013
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1 Purpose
(1) The purpose of this Act is to enable persons with a
disability to have a guardian or administrator
appointed when they need a guardian or
administrator.
(2) It is also the purpose of this Act to enable the
making of administration orders and temporary
administration orders in respect of the estate of a
missing person.
S. 1
amended by
No. 64/2010
s. 30 (ILA
s. 39B(1)).
S. 1(2)
inserted by
No. 64/2010
s. 30.
2 Commencement
This Act comes into operation on a day or days to
be proclaimed.
3 Definitions
(1) In this Act—
administration order means—
(a) an order of the Tribunal appointing a
person as an administrator of the estate
of a person under section 46; or
(b) a temporary order of the Tribunal under
section 60; or
1
S. 3(1) def. of
administration order
amended by
Nos 52/1998
s. 116(1)(a),
64/2010
s. 31(a).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
(c) an order of the Tribunal appointing a
person as an administrator or temporary
administrator of the estate of a missing
person under Part 5A;
S. 3(1) def. of
Administrative
Appeals
Tribunal
repealed by
No. 52/1998
s. 116(1)(b).
*
*
*
*
S. 3(1) def. of
administrator
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 1),
40/1999
s. 4(1)(b).
administrator means the person named as
administrator in an administration order;
S. 3(1) def. of
appointor
inserted by
No. 40/1999
s. 4(1)(a).
appointor means a person who appoints an
enduring guardian under Division 5A of
Part 4;
S. 3(1) def. of
Board
repealed by
No. 52/1998
s. 116(1)(b).
*
*
*
*
*
*
S. 3(1) def. of
determination
amended by
No. 52/1998
s. 116(1)(c).
determination in relation to the Tribunal, includes
order, direction, consent, advice and
approval;
S. 3(1) def. of
disability
substituted by
No. 40/1999
s. 4(1)(c).
disability, in relation to a person, means
intellectual impairment, mental disorder,
brain injury, physical disability or dementia;
S. 3(1) def. of
division
repealed by
No. 52/1998
s. 116(1)(b).
*
*
*
2
*
*
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
domestic partner of a person means—
(a) a person who is in a registered
relationship with the person; or
(b) an adult person to whom the person is
not married but with whom the person
is in a relationship as a couple where
one or each of them provides personal
or financial commitment and support of
a domestic nature for the material
benefit of the other, irrespective of their
genders and whether or not they are
living under the same roof, but does not
include a person who provides
domestic support and personal care to
the person—
S. 3(1) def. of
domestic
partner
inserted by
No. 27/2001
s. 9(Sch. 7
item 2.1(a)),
substituted by
No. 12/2008
s. 73(1)(Sch. 1
item 27.1).
(i) for fee or reward; or
(ii) on behalf of another person or an
organisation (including a
government or government
agency, a body corporate or a
charitable or benevolent
organisation);
emergency treatment means treatment under
section 42A;
S. 3(1) def. of
emergency
treatment
inserted by
No. 40/1999
s. 4(1)(a).
enduring guardian means a person appointed as
an enduring guardian under Division 5A of
Part 4;
S. 3(1) def. of
enduring
guardian
inserted by
No. 40/1999
s. 4(1)(a).
*
*
*
3
*
*
S. 3(1) def. of
executive
officer
repealed by
No. 52/1998
s. 116(1)(b).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
S. 3(1) def. of
guardian
substituted by
No. 40/1999
s. 4(1)(d),
amended by
No. 3/2006
s. 13.
guardian means (except in section 58C(2))—
(a) the Public Advocate, person or body
named as a plenary guardian or limited
guardian in a guardianship order; or
(b) a person who becomes a guardian under
section 35; or
(c) a person named as an enduring
guardian in an instrument appointing
such a guardian;
S. 3(1) def. of
guardianship
order
amended by
No. 52/1998
s. 116(1)(d).
guardianship order means—
(a) an order of the Tribunal appointing a
person as plenary guardian or limited
guardian under section 22; or
(b) an order of the Tribunal appointing a
person as an alternative guardian under
section 34; or
(c) a temporary order of the Tribunal made
under section 33;
S. 3(1) def. of
human
research
ethics
committee
inserted by
No. 3/2006
s. 4(1)(a).
human research ethics committee means—
(a) a human research ethics committee
established in accordance with the
requirements of the National Statement;
or
(b) an ethics committee established under
the by-laws of a public hospital, public
health service, denominational hospital
or multi-purpose service (within the
meaning of the Health Services Act
1988);
S. 3(1) def. of
income
inserted by
No. 45/1994
s. 32(1)(a).
income includes rents and profits;
4
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
*
*
*
*
*
medical or dental treatment means—
(a) medical treatment (including any
medical or surgical procedure,
operation or examination and any
prophylactic, palliative or rehabilitative
care) normally carried out by, or under,
the supervision of a registered
practitioner; or
(b) dental treatment (including any dental
procedure, operation or examination)
normally carried out by or under the
supervision of a registered practitioner;
or
(c) any other treatment not referred to in
paragraphs (a) and (b) that is prescribed
by the regulations to be medical or
dental treatment for the purposes of
this Act—
but does not include—
(d) a special procedure; or
(da) a medical research procedure; or
(e) any non-intrusive examination made for
diagnostic purposes (including a visual
examination of the mouth, throat, nasal
cavity, eyes or ears); or
(f) first-aid treatment; or
5
S. 3(1) def. of
major medical
procedure
repealed by
No. 40/1999
s. 4(1)(e).
S. 3(1) def. of
medical or
dental
treatment
inserted by
No. 40/1999
s. 4(1)(a),
amended by
No. 3/2006
s. 4(1)(b).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
(g) the administration of a pharmaceutical
drug for the purpose and in accordance
with the dosage level—
(i) if the drug is one for which a
prescription is required,
recommended by a registered
practitioner; or
(ii) if the drug is one for which a
prescription is not required and
which is normally selfadministered, recommended in the
manufacturer's instructions or by a
registered practitioner; or
(h) any other kind of treatment that is
prescribed by the regulations not to be
medical or dental treatment for the
purposes of this Act;
S. 3(1) def. of
medical
research
procedure
inserted by
No. 3/2006
s. 4(1)(a).
medical research procedure means—
(a) a procedure carried out for the purposes
of medical research, including, as part
of a clinical trial, the administration of
medication or the use of equipment or a
device; or
(b) a procedure that is prescribed by the
regulations to be a medical research
procedure for the purposes of this
Act—
but does not include—
(c) any non-intrusive examination
(including a visual examination of the
mouth, throat, nasal cavity, eyes or ears
or the measuring of a person's height,
weight or vision); or
(d) observing a person's activities; or
(e) undertaking a survey; or
6
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
(f) collecting or using information,
including personal information (within
the meaning of the Information
Privacy Act 2000) or health
information (within the meaning of the
Health Records Act 2001); or
(g) any other procedure that is prescribed
by the regulations not to be a medical
research procedure for the purposes of
this Act;
*
*
*
*
*
National Statement means—
(a) the National Statement on Ethical
Conduct in Research Involving Humans
published by the National Health and
Medical Research Council in 1999 as in
force from time to time; or
S. 3(1) def. of
member
repealed by
No. 52/1998
s. 116(1)(b).
S. 3(1) def. of
National
Statement
inserted by
No. 3/2006
s. 4(1)(a).
(b) any superseding document published by
the National Health and Medical
Research Council that covers the same
subject matter;
nearest relative in relation to a person means the
spouse or domestic partner of that person or,
where that person does not have a spouse or
domestic partner, the relative of that person
first listed in the following paragraphs who
has attained the age of 18 years, the elder or
eldest of two or more relatives described in
any paragraph being preferred to either or
any of those relatives regardless of sex—
(a) son or daughter;
(b) father or mother;
7
S. 3(1) def. of
nearest
relative
amended by
No. 27/2001
s. 9(Sch. 7
item 2.1(b)).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
(c) brother or sister;
(d) grandfather or grandmother;
(e) grandson or granddaughter;
(f) uncle or aunt;
(g) nephew or niece;
S. 3(1) def. of
person
responsible
inserted by
No. 40/1999
s. 4(1)(a).
person responsible has the meaning given by
section 37;
prescribed means prescribed by the regulations;
S. 3(1) def. of
President
repealed by
No. 52/1998
s. 116(1)(b).
*
*
*
*
*
primary carer means any person who is primarily
responsible for providing support or care to a
person;
S. 3(1) def. of
principal
registrar
inserted by
No. 52/1998
s. 116(1)(e).
principal registrar means principal registrar of the
Tribunal;
Public Advocate means the person appointed as
the Public Advocate under Part 3;
S. 3(1) def. of
Public Trustee
repealed by
No. 55/1987
s. 57(2)(Sch. 4
item 2).
*
*
*
8
*
*
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
registered practitioner means—
(a) a person registered under the Health
Practitioner Regulation National Law to
practise in the medical profession
(other than as a student); or
(b) a person registered under the Health
Practitioner Regulation National Law—
(i) to practise in the dental profession
as a dentist (other than as a
student); and
S. 3(1) def. of
registered
practitioner
inserted by
No. 40/1999
s. 4(1)(a),
amended by
No. 41/2002
s. 3(1),
substituted by
Nos 97/2005
s. 182(Sch. 4
item 23),
13/2010
s. 51(Sch.
item 26).
(ii) in the dentist division of that
profession;
regulations means regulations made under
this Act;
relevant human research ethics committee for a
medical research procedure means the
human research ethics committee responsible
for approving the relevant research project;
S. 3(1) def. of
relevant
human
research
ethics
committee
inserted by
No. 3/2006
s. 4(1)(a).
relevant research project for a medical research
procedure means the research project for the
purposes of which the procedure is, or is to
be, carried out;
S. 3(1) def. of
relevant
research
project
inserted by
No. 3/2006
s. 4(1)(a).
represented person means—
S. 3(1) def. of
represented
person
substituted by
No. 64/2010
s. 31(b).
(a) any person in respect of whom—
(i) a guardianship order is in effect;
or
(ii) an administration order under
Part 5 is in effect; or
9
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
(iii) both a guardianship order and an
administration order under Part 5
are in effect; or
(b) any person whose estate is subject to an
administration order or temporary
administration order under Part 5A;
Note
See also section 60AH, which restricts the definition
of represented person in relation to a person whose
estate is subject to an order under Part 5A.
S. 3(1) def. of
special
procedure
inserted by
No. 40/1999
s. 4(1)(a),
amended by
No. 3/2006
s. 4(1)(c).
special procedure means—
(a) any procedure that is intended, or is
reasonably likely, to have the effect of
rendering permanently infertile the
person on whom it is carried out; or
*
*
*
*
*
(c) termination of pregnancy; or
(d) any removal of tissue for the purposes
of transplantation to another person; or
(e) any other medical or dental treatment
that is prescribed by the regulations to
be a special procedure for the purposes
of Part 4A;
S. 3(1) def. of
spouse
inserted by
No. 27/2001
s. 9(Sch. 7
item 2.1(a)).
S. 3(1) def. of
State Trust
inserted by
No. 55/1987
s. 57(2)(Sch. 4
item 3),
repealed by
No. 45/1994
s. 32(1)(b).
spouse of a person means a person to whom the
person is married;
*
*
*
10
*
*
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 3
State Trustees has the same meaning as in the
State Trustees (State Owned Company)
Act 1994;
S. 3(1) def. of
State Trustees
inserted by
No. 40/1999
s. 4(1)(a).
Tribunal means Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
Tribunal Act 1998;
S. 3(1) def. of
Tribunal
inserted by
No. 52/1998
s. 116(1)(e).
working day means a day other than a Saturday, a
Sunday or a public holiday appointed under
the Public Holidays Act 1993.
S. 3(1) def. of
working day
inserted by
No. 3/2006
s. 4(1)(a).
(2) A reference in the definition of nearest relative in
subsection (1) to a person's brother or sister—
(a) is a reference to a brother or sister whether of
the full or half blood; and
(b) includes a reference to a person who was
adopted by one or both of the first-mentioned
person's parents.
*
*
*
*
*
(4) For the purposes of the definition of domestic
partner in subsection (1)—
(a) registered relationship has the same
meaning as in the Relationships Act 2008;
and
(b) in determining whether persons who are not
in a registered relationship are domestic
partners of each other, all the circumstances
11
S. 3(2)
amended by
No. 27/2001
s. 9(Sch. 7
item 2.2),
substituted by
No. 41/2002
s. 3(2).
S. 3(3)
inserted by
No. 45/1994
s. 32(2),
substituted by
No. 40/1999
s. 4(2),
repealed by
No. 3/2006
s. 4(2).
S. 3(4)
inserted by
No. 27/2001
s. 9(Sch. 7
item 2.3),
substituted by
No. 12/2008
s. 73(1)(Sch. 1
item 27.2).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 4
of their relationship are to be taken into
account, including any one or more of the
matters referred to in section 35(2) of the
Relationships Act 2008 as may be relevant
in a particular case; and
(c) a person is not a domestic partner of another
person only because they are co-tenants.
4 Objects of Act
(1) The objects of this Act are—
S. 4(1)(a)
repealed by
No. 52/1998
s. 116(2).
*
*
*
*
*
(b) to provide for the appointment of a Public
Advocate; and
(c) to enable the making of guardianship orders
and administration orders; and
S. 4(1)(ca)
inserted by
No. 64/2010
s. 32.
(ca) to enable the making of administration
orders and temporary administration orders
in respect of the estate of a missing person;
and
S. 4(1)(d)
amended by
No. 40/1999
s. 5.
(d) to ensure that persons with a disability and
represented persons are informed of and
make use of the provisions of this Act; and
S. 4(1)(e)
inserted by
No. 40/1999
s. 5.
(e) to provide for the appointment of enduring
guardians; and
S. 4(1)(f)
inserted by
No. 40/1999
s. 5,
substituted by
No. 3/2006
s. 4(3).
(f) to provide for consent to special procedures,
medical research procedures and medical and
dental treatment on behalf of persons
incapable of giving consent to those
procedures or treatment; and
12
Guardianship and Administration Act 1986
No. 58 of 1986
Part 1—Preliminary
s. 4
(g) to provide for the registration of interstate
guardianship orders and administration
orders.
S. 4(1)(g)
inserted by
No. 40/1999
s. 5.
(2) It is the intention of Parliament that the provisions
of this Act be interpreted and that every function,
power, authority, discretion, jurisdiction and duty
conferred or imposed by this Act is to be
exercised or performed so that—
(a) the means which is the least restrictive of a
person's freedom of decision and action as is
possible in the circumstances is adopted; and
(b) the best interests of a person with a disability
are promoted; and
(c) the wishes of a person with a disability are
wherever possible given effect to.
__________________
*
*
*
13
*
*
Pt 2 (Heading
and ss 5–13)
amended by
Nos 23/1994
s. 118(Sch. 1
item 23.1),
46/1998
s. 7(Sch. 1),
repealed by
No. 52/1998
s. 117.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 14
PART 3—THE PUBLIC ADVOCATE
14 The Public Advocate
(1) There is to be appointed a Public Advocate.
(2) Schedule 3 has effect with respect to the Public
Advocate.
15 Functions of the Public Advocate
The functions of the Public Advocate are—
(a) to promote, facilitate and encourage the
provision, development and co-ordination of
services and facilities provided by
government, community and voluntary
organisations for persons with a disability
with a view to—
(i) promoting the development of the
ability and capacity of persons with a
disability to act independently; and
(ii) minimizing the restrictions on the rights
of persons with a disability; and
(iii) ensuring the maximum utilization by
persons with a disability of those
services and facilities; and
(iv) encouraging the involvement of
voluntary organizations and relatives,
guardians and friends in the provision
and management of those services and
facilities; and
S. 15(b)
amended by
No. 40/1999
s. 6(1).
(b) to support the establishment of organizations
involved with persons with a disability,
relatives, guardians and friends for the
purpose of—
(i) instituting citizen advocacy programs
and other advocacy programs; and
14
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 16
(ii) undertaking community education
projects; and
(iii) promoting family and community
responsibility for guardianship; and
(c) to arrange, co-ordinate and promote
informed public awareness and
understanding by the dissemination of
information with respect to—
(i) the provisions of this Act and any other
legislation dealing with or affecting
persons with a disability; and
(ii) the role of the Tribunal and the Public
Advocate; and
S. 15(c)(ii)
amended by
No. 52/1998
s. 118(1).
(iii) the duties, powers and functions of
guardians and administrators under this
Act; and
(iv) the protection of persons with a
disability from abuse and exploitation
and the protection of their rights; and
(d) to investigate, report and make
recommendations to the Minister on any
aspect of the operation of this Act referred to
the Public Advocate by the Minister.
16 Powers and duties of the Public Advocate
(1) The Public Advocate may—
(a) where appointed by the Tribunal be—
(i) a guardian (whether plenary or limited);
or
(ii) an alternative guardian (whether
plenary or limited); and
15
S. 16(1)(a)
amended by
No. 52/1998
s. 118(2)(a).
S. 16(1)(a)(ii)
substituted by
No. 40/1999
s. 6(2)(a).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 16
S. 16(1)(a)(iii)
repealed by
No. 40/1999
s. 6(2)(a).
*
S. 16(1)(b)
amended by
Nos 52/1998
s. 118(2)(a),
78/2000
s. 6(a).
S. 16(1)(c)
repealed by
No. 52/1998
s. 118(2)(b).
S. 16(1)(d)
amended by
No. 52/1998
s. 118(2)(c).
*
*
*
*
(b) make an application to the Tribunal for the
appointment of a guardian or administrator
or the rehearing or reassessment of a
guardianship order or an administration
order; and
*
*
*
*
*
(d) submit a report to the Tribunal on any matter
referred to the Public Advocate for a report
by the Tribunal; and
(e) seek assistance in the best interests of any
person with a disability from any
government department, institution, welfare
organization or service provider; and
(f) make representations on behalf of or act for a
person with a disability; and
(g) give advice to any person as to the
provisions of this Act and in respect of
applications for guardianship or
administration; and
(h) investigate any complaint or allegation that a
person is under inappropriate guardianship or
is being exploited or abused or in need of
guardianship; and
16
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 16
(ha) for the purposes of—
(i) an investigation under paragraph (h); or
(ii) the provision of a report under
clause 35, 42 or 48 of Schedule 1 to the
Victorian Civil and Administrative
Tribunal Act 1998—
S. 16(1)(ha)
inserted by
No. 40/1999
s. 6(2)(b),
substituted by
No. 41/2002
s. 4(1).
require (subject to subsection (1A)) a person,
government department, public authority,
service provider, institution or welfare
organisation to provide information; and
(i) provide information for persons who are or
propose to be guardians; and
(j) report and make recommendations to the
Tribunal on behalf of any person with a
disability in any proceeding under the Equal
Opportunity Act 2010; and
S. 16(1)(j)
amended by
No. 42/1995
s. 223(Sch. 1
item 2),
substituted by
No. 52/1998
s. 118(2)(d),
amended by
No. 16/2010
s. 209(Sch
item 2).
(ja) make recommendations to the Tribunal with
respect to guidelines proposed to be issued
by the Tribunal about consent to a special
procedure or medical research procedure and
any other medical or dental treatment under
Part 4A.
S. 16(1)(ja)
inserted by
No. 40/1999
s. 6(2)(c),
amended by
No. 3/2006
s. 5.
(k) perform any other function and exercise any
other power conferred on him or her by this
or any other Act.
S. 16(1)(k)
inserted by
No. 52/1998
s. 118(2)(d).
(1A) It is a reasonable excuse for a person to refuse or
fail to provide information that the person would
otherwise be required under subsection (1)(ha) to
provide if providing the information would tend to
incriminate the person.
17
S. 16(1A)
inserted by
No. 41/2002
s. 4(2).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 17
S. 16(2)
amended by
No. 40/1999
s. 6(3)(a).
(2) Where the Public Advocate is appointed as the
guardian of a represented person—
S. 16(2)(a)
amended by
No. 40/1999
s. 6(3)(b).
(a) the person for the time being holding the
office or performing the functions of the
Public Advocate is the guardian of that
represented person; and
S. 16(2)(b)
amended by
No. 40/1999
s. 6(3)(c).
(b) the Public Advocate must use his or her best
endeavours to find an appropriate person to
be appointed as the guardian.
17 Staff of office of the Public Advocate
S. 17(1)
substituted by
No. 46/1998
s. 7(Sch. 1),
amended by
No. 108/2004
s. 117(1)
(Sch. 3
item 92.1).
S. 17(2)
repealed by
No. 52/1998
s. 118(3)(a).
(1) Any employees that are necessary to enable the
functions of the Public Advocate to be properly
carried out may be employed under Part 3 of the
Public Administration Act 2004.
*
*
*
*
*
18 Delegation
S. 18(1)
amended by
No. 3/2006
s. 14(a).
S. 18(1)(a)
repealed by
No. 3/2006
s. 14(b).
(1) The Public Advocate may by an instrument of
delegation delegate to an officer or employee
employed in the office of the Public Advocate
under section 17 any power, duty or function of
the Public Advocate other than this power of
delegation.
*
*
*
18
*
*
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 18A
*
*
*
*
*
(2) The Public Advocate may with the approval of the
Tribunal by instrument of delegation delegate any
or all of the Public Advocate's powers and duties
as guardian to an individual or organization
specified in the instrument of delegation.
18A Powers of inspection
(1) The Public Advocate is entitled to enter any
premises on which an institution is situated and—
S. 18(1)(b)
amended by
No. 40/1999
s. 6(4),
repealed by
No. 3/2006
s. 14(b).
S. 18(2)
amended by
No. 52/1998
s. 118(3)(b)
(i)(ii).
S. 18A
inserted by
No. 51/2001
s. 5.
(a) inspect those premises; and
(b) see any person who is a resident of those
premises or who is receiving any service
from the institution; and
(c) make enquiries relating to the admission,
care, detention, treatment or control of any
such person; and
(d) inspect any document relating to any such
person or any record required to be kept
under this Act, the Health Services Act
1988, the Supported Residential Services
(Private Proprietors) Act 2010, the
Disability Act 2006 or the Mental Health
Act 1986.
(2) Subsection (1)(d) does not authorise the Public
Advocate to inspect—
(a) a person's medical records unless that person
consents; or
(b) personnel records unless the person to whom
they relate consents.
19
S. 18A(1)(d)
amended by
Nos 23/2006
s. 240(1),
49/2010
s. 229(1).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 18A
(3) The person in charge and the members of staff or
management of the institution must provide the
Public Advocate with any reasonable assistance
that the Public Advocate requires to perform or
exercise any power, duty or function under this
section effectively.
(4) A person in charge or a member of the staff or
management of an institution must not—
(a) unreasonably refuse or neglect to give
assistance when required to do so under
subsection (3); or
(b) refuse or fail to give full and true answers to
the best of that person's knowledge to any
questions asked by the Public Advocate in
the performance or exercise of any power,
duty or function under this section; or
(c) assault, obstruct or threaten the Public
Advocate in the performance or exercise of
any power, duty or function under this
section.
Penalty: 25 penalty units.
(5) In this section institution means any of the
following—
S. 18A(5)(a)
substituted by
No. 23/2006
s. 240(2)(a).
(a) a disability service provider within the
meaning of section 3(1) of the Disability Act
2006;
S. 18A(5)(b)
amended by
No. 49/2010
s. 229(2)(a).
(b) a designated public hospital within the
meaning of the Health Services Act 1988;
S. 18A(5)(c)
substituted by
No. 23/2006
s. 240(2)(b).
(c) a residential service, residential institution or
residential treatment facility within the
meaning of section 3(1) of the Disability Act
2006;
20
Guardianship and Administration Act 1986
No. 58 of 1986
Part 3—The Public Advocate
s. 18A
(d) a mental health service within the meaning
of Division 5 of Part 6 of the Mental Health
Act 1986;
S. 18A(5)(d)
amended by
No. 49/2010
s. 229(2)(b).
(e) a supported residential service within the
meaning of the Supported Residential
Services (Private Proprietors) Act 2010.
S. 18A(5)(e)
inserted by
No. 49/2010
s. 229(2)(c).
_______________
21
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 19
PART 4—GUARDIANSHIP ORDERS
Division 1—Application for guardianship order
19 Application for guardianship order
S. 19(1)
amended by
No. 52/1998
s. 119(1).
(1) Any person may apply to the Tribunal for an order
appointing—
(a) a plenary guardian; or
(b) a limited guardian—
in respect of a person with a disability who has
attained the age of 18 years or to take effect upon
the person attaining the age of 18 years.
S. 19(2)
substituted by
No. 52/1998
s. 119(2).
(2) In addition to any other parties, the following are
parties to a proceeding on an application under
subsection (1)—
(a) the person in respect of whom the
application is made; and
(b) the person proposed as guardian.
S. 19(3)
repealed by
No. 52/1998
s. 119(3).
S. 20
amended by
No. 33/1989
ss 4(a), 5(1),
substituted by
No. 52/1998
s. 120.
*
*
*
*
*
20 Who is entitled to notice of an application?
Each of the following is entitled to notice of the
making of an application for a guardianship order,
notice of the hearing of the application and notice
of any order made by the Tribunal in respect of
the application—
(a) the nearest relative available of the person in
respect of whom the application is made, not
being—
22
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 21
(i) the applicant; or
(ii) the person proposed as guardian; or
(iii) a person referred to in paragraph (d);
(b) the primary carer of the person in respect of
whom the application is made;
(c) the Public Advocate;
(d) any administrator of the estate of the person
in respect of whom the application is made1.
21 Date for hearing
The Tribunal must commence to hear an
application under section 19 within 30 days after
the day on which the application is received by the
Tribunal.
S. 21
amended by
No. 52/1998
s. 121(1)(a).
Division 2—Appointment of guardian
22 Guardianship order
(1) If the Tribunal is satisfied that the person in
respect of whom an application for an order
appointing a guardian is made—
(a) is a person with a disability; and
(b) is unable by reason of the disability to make
reasonable judgments in respect of all or any
of the matters relating to her or his person or
circumstances; and
(c) is in need of a guardian—
the Tribunal may make an order appointing a
plenary guardian or a limited guardian in respect
of that person.
23
S. 22(1)
amended by
No. 52/1998
s. 121(1)(a).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 23
S. 22(2)
amended by
No. 52/1998
s. 121(1)(a),
substituted by
No. 40/1999
s. 7.
S. 22(2)(ab)
inserted by
No. 3/2006
s. 15(a).
(2) In determining whether or not a person is in need
of a guardian, the Tribunal must consider—
(a) whether the needs of the person in respect of
whom the application is made could be met
by other means less restrictive of the person's
freedom of decision and action; and
(ab) the wishes of the proposed represented
person, so far as they can be ascertained; and
(b) the wishes of any nearest relatives or other
family members of the proposed represented
person; and
(c) the desirability of preserving existing family
relationships.
S. 22(3)
amended by
No. 52/1998
s. 121(1)(a).
(3) The Tribunal cannot make an order under
subsection (1) unless it is satisfied that the order
would be in the best interests of the person in
respect of whom the application is made.
S. 22(4)
amended by
No. 52/1998
s. 121(1)(a).
(4) The Tribunal cannot make an order appointing a
plenary guardian unless it is satisfied that a
limited guardianship order would be insufficient
to meet the needs of the person in respect of
whom the application is made.
S. 22(5)
amended by
No. 52/1998
s. 121(1)(a).
(5) Where the Tribunal makes an order appointing a
limited guardian in respect of a person the order
made must be that which is the least restrictive of
that person's freedom of decision and action as is
possible in the circumstances.
23 Persons eligible as guardians
S. 23(1)
amended by
No. 52/1998
s. 121(1)(a).
(1) The Tribunal may appoint as a plenary guardian
or limited guardian any person who has attained
the age of 18 years and consents to act as guardian
if the Tribunal is satisfied that that person—
24
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 23
(a) will act in the best interests of the proposed
represented person; and
(b) is not in a position where the person's
interests conflict or may conflict with the
interests of the proposed represented person;
and
(c) is a suitable person to act as the guardian of
the proposed represented person.
(2) In determining whether a person is suitable to act
as the guardian of a represented person, the
Tribunal must take into account—
(a) the wishes of the proposed represented
person, so far as they can be ascertained; and
(b) the desirability of preserving existing family
relationships; and
(c) the compatibility of the person proposed as
guardian with the proposed represented
person and with the administrator (if any) of
the proposed represented person's estate; and
(d) whether the person proposed as guardian will
be available and accessible to the proposed
represented person so as to fulfil the
requirements of guardianship of that person.
(3) Where a parent or nearest relative of a proposed
represented person is proposed as the guardian
that person is not by virtue only of the fact that
that person is a parent or nearest relative to be
taken to be in a position where the person's
interests conflict or may conflict with those of the
proposed represented person.
25
S. 23(2)
amended by
No. 52/1998
s. 121(1)(a).
S. 23(2)(a)
amended by
No. 3/2006
s. 15(b).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 24
S. 23(4)
amended by
No. 52/1998
s. 121(1)(a).
(4) Where it appears to the Tribunal that—
(a) the person in respect of whom the
application is made is a person in respect of
whom an order could be made under
section 22; and
(b) no other person fulfils the requirements of
subsection (1) for appointment as the
guardian of that person—
the Tribunal may appoint the Public Advocate as
the plenary guardian or limited guardian of that
person.
S. 23(5)
amended by
No. 52/1998
s. 121(1)(a).
(5) This section does not prevent the Tribunal from
appointing persons (including the Public Advocate
and any other person) as joint plenary guardians
or joint limited guardians of the proposed
represented person if—
(a) each person fulfils the requirements of
subsection (1); and
S. 23(5)(b)
amended by
No. 52/1998
s. 121(1)(a).
(b) the Tribunal considers it appropriate to do
so.
Division 3—Powers and duties of guardian
24 Authority of plenary guardian
(1) A guardianship order appointing a plenary
guardian confers on the plenary guardian in
respect of the represented person all the powers
and duties which the plenary guardian would have
if he or she were a parent and the represented
person his or her child.
26
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 24
(2) Without limiting subsection (1) an order
appointing a plenary guardian confers on the
person named as plenary guardian the power—
(a) to decide where the represented person is to
live, whether permanently or temporarily;
and
(b) to decide with whom the represented person
is to live; and
(c) to decide whether the represented person
should or should not be permitted to work
and, if so—
(i) the nature or type of work; and
(ii) for whom the represented person is to
work; and
(iii) matters related thereto; and
*
(d) except as otherwise provided in Part 4A, to
consent to any health care that is in the best
interests of the represented person; and
S. 24(2)(d)
amended by
No. 40/1999
s. 8(a)(b).
(e) to restrict visits to a represented person to
such extent as may be necessary in his or her
best interests and to prohibit visits by any
person if the guardian reasonably believes
that they would have an adverse effect on the
represented person.
S. 24(2)(e)
inserted by
No. 40/1999
s. 8(b).
*
*
*
*
(4) Where a decision is made, action taken, consent
given or thing done by a plenary guardian under
an order made under Division 2 the decision,
action, consent or thing has effect as if it had been
made, taken, given or done by the represented
person and the represented person had the legal
capacity to do so.
27
S. 24(3)
repealed by
No. 52/1998
s. 121(1)(b).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 25
25 Authority of limited guardian
S. 25(1)
amended by
No. 52/1998
s. 121(1)(c)(i).
S. 25(2)
amended by
No. 52/1998
s. 121(1)(c)(i),
repealed by
No. 52/1998
s. 121(1)(c)(ii).
S. 25(3)
amended by
No. 52/1998
s. 121(1)(c)(i).
(1) If the Tribunal makes an order under Division 2
appointing a limited guardian, the guardianship
order confers on the person named as limited
guardian such one or more of the powers and
duties in respect of the represented person that are
conferred on a plenary guardian under this Act as
the Tribunal may specify in the order.
*
*
*
*
*
(3) Where a decision is made, action taken, consent
given or thing done by a limited guardian under an
order of the Tribunal under Division 2, the
decision, action, consent or thing has effect as if it
had been made, taken, given or done by the
represented person and the represented person had
the legal capacity to do so.
26 Power to enforce guardianship order
S. 26(1)
amended by
No. 52/1998
s. 121(1)(d),
substituted by
No. 41/2002
s. 5(1).
(1) If, having regard to the circumstances of the case,
the Tribunal considers it appropriate to do so the
Tribunal may—
(a) when making a guardianship order under
Division 2 or 4, specify in the order; or
(b) at any time while a guardianship order under
Division 2 or 4 is in force, make an order
specifying—
that the person named as plenary guardian or
limited guardian or another specified person is
empowered to take specified measures or actions
to ensure that the represented person complies
with the guardian's decisions in the exercise of the
powers and duties conferred by the guardianship
order.
28
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 27
(1A) If the Tribunal makes an order under
subsection (1) empowering a guardian or a
specified person to take such measures or actions
as are specified in the order, the Tribunal must
hold a hearing to reassess that order as soon as
practicable after the making of that order but
within 42 days of making that order.
S. 26(1A)
inserted by
No. 40/1999
s. 9,
amended by
No. 78/2000
s. 6(b).
(2) Where a guardian or other person specified in the
order under subsection (1) takes any measure or
action specified in the order in the belief that—
(a) the measure or action is in the best interests
of the represented person; and
(b) it is reasonable to take that measure or action
in the circumstances—
the guardian or other person is not liable to any
action for false imprisonment or assault or any
other action, liability, claim or demand arising out
of the taking of that measure or action.
(3) Subsection (1) does not limit section 24 or 25.
S. 26(3)
inserted by
No. 41/2002
s. 5(2).
27 Special powers in respect of persons with a disability
(1) If the Tribunal has received information on oath
that a person with a disability in respect of whom
an application has been made under section 19—
(a) is being unlawfully detained against her or
his will; or
(b) is likely to suffer serious damage to her or
his physical, emotional or mental health or
well-being unless immediate action is
taken—
the Tribunal may by order empower the Public
Advocate or some other person specified in the
order to visit the person with a disability in the
29
S. 27(1)
amended by
No. 52/1998
s. 121(1)(e).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 28
company of a member of the police force for the
purpose of preparing a report for the Tribunal.
S. 27(2)
amended by
Nos 52/1998
s. 121(1)(e),
40/1999 s. 10.
(2) If after receiving a report under subsection (1) the
Tribunal is satisfied that subsection (1)(a) or
(1)(b) applies the Tribunal may make an order
enabling the person with a disability to be taken to
a place specified in the order for assessment and
placement until the application under section 19 is
heard.
(3) A member of the police force acting under an
order made under subsection (1) may with such
assistance as is necessary use such force as is
reasonably necessary to enter the premises where
the person with a disability is.
S. 27(4)
substituted by
No. 52/1998
s. 121(2).
(4) A person must not delay or obstruct a person who
is acting under an order under this section.
Penalty: 20 penalty units.
28 Exercise of authority by guardian
(1) A guardian must act in the best interests of the
represented person.
(2) Without limiting subsection (1), a guardian acts in
the best interests of a represented person if the
guardian acts as far as possible—
(a) as an advocate for the represented person;
and
(b) in such a way as to encourage the
represented person to participate as much as
possible in the life of the community; and
(c) in such a way as to encourage and assist the
represented person to become capable of
caring for herself or himself and of making
reasonable judgments in respect of matters
relating to her or his person; and
30
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 29
(d) in such a way as to protect the represented
person from neglect, abuse or exploitation;
and
(e) in consultation with the represented person,
taking into account, as far as possible, the
wishes of the represented person.
29 Ancillary powers of guardian
A guardian may on behalf of a represented person
sign and do all such things as are necessary to
give effect to any power or duty vested in the
guardian.
30 Guardian may seek advice
(1) A guardian may apply for the advice of the
Tribunal upon any matter relating to the scope of
the guardianship order or the exercise of any
power by the guardian under the guardianship
order.
*
*
*
*
*
(3) The Tribunal may—
(a) approve or disapprove of any act proposed to
be done by the guardian; and
S. 30(1)
amended by
No. 52/1998
s. 121(3)(a)(i).
S. 30(2)
repealed by
No. 52/1998
s. 121(3)(a)(ii).
S. 30(3)
amended by
No. 52/1998
s. 121(3)(a)(iii).
(b) give such advice as it considers appropriate;
and
(c) make any order it considers necessary.
(4) An action does not lie against a guardian on
account of an act or thing done or omitted by the
guardian under any order or on the advice of the
Tribunal made or given under this section unless
in representing the facts to the Tribunal the
guardian has been guilty of fraud, wilful
concealment or misrepresentation.
31
S. 30(4)
amended by
No. 52/1998
s. 121(3)(a)(iii).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 31
S. 31
amended by
No. 52/1998
s. 121(3)(b).
31 Notice of death of represented person
Where a represented person in respect of whom a
guardian has been appointed, dies, the guardian
must report the death in writing to the Tribunal
without delay.
Division 4—Temporary orders
32 Application for temporary order
S. 32(1)
amended by
Nos 52/1998
s. 121(3)(c),
40/1999
s. 11(1).
(1) Any person may apply to the Tribunal for a
temporary order appointing a guardian of a person
in respect of whom an application could be made
under section 19.
S. 32(2)
amended by
No. 52/1998
s. 121(3)(c).
(2) An application may be made under subsection (1)
whether or not an application has been made to
the Tribunal under section 19.
S. 32(3)
substituted by
No. 52/1998
s. 121(4).
(3) Each person who would be entitled to
notice under section 20 of an application under
section 19 is entitled to notice of the making of
an application under this section, notice of the
hearing of the application and notice of any order
made by the Tribunal in respect of the application.
S. 32(4)
amended by
No. 74/1987
s. 7(a),
repealed by
No. 52/1998
s. 121(5)(a).
*
*
*
*
*
33 Temporary order
S. 33(1)
amended by
Nos 52/1998
s. 121(5)(b)(i),
40/1999
s. 11(2).
(1) If the Tribunal is satisfied that the person in
respect of whom an application has been made
under section 32—
(a) is a person with a disability; and
(b) is unable to make reasonable judgments in
respect of all or any of the matters relating to
her or his person or circumstances; and
32
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 34
(c) is in need of a guardian—
the Tribunal may make a temporary order
appointing any person eligible to be appointed
under section 23 as the plenary guardian or
limited guardian of that person.
S. 33(2)
substituted by
No. 40/1999
s. 11(3).
(2) A temporary order—
(a) remains in effect for such period not
exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further period not
exceeding 21 days.
(3) The Tribunal must hold a hearing to determine
whether a guardianship order should be made
under section 22 as soon as practicable after the
making of a temporary order but within 42 days of
making that order.
*
*
*
*
*
S. 33(3)
amended by
Nos 52/1998
s. 121(5)(b)(i),
40/1999
s. 11(4).
S. 33(4)
repealed by
No. 52/1998
s. 121(5)(b)(ii).
Division 5—Appointment of alternative guardian
34 Appointment of alternative guardian
(1) When making or reassessing a guardianship order,
or at any time when a guardianship order is in
force, the Tribunal may make an order appointing
an alternative guardian if—
(a) the person proposed as an alternative
guardian has consented to act as guardian of
the represented person in the event of the
death, absence or incapacity of the original
guardian; and
33
S. 34(1)
amended by
Nos 52/1998
s. 121(5)(c),
78/2000
s. 6(c),
41/2002 s. 6.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35
S. 34(1)(b)
amended by
No. 52/1998
s. 121(5)(c).
(b) the Tribunal is satisfied that the persons to
whom notice of the hearing of a guardianship
order is given under section 20 have had
sufficient notice of the willingness of the
person proposed as alternative guardian to
act as alternative guardian.
(2) Section 23 (other than subsection (5)) applies to
and in relation to the person proposed as
alternative guardian as if that person were the
proposed guardian.
35 Authority of alternative guardian
(1) If an alternative guardian is appointed, the
alternative guardian takes over the office of
plenary guardian or limited guardian (as the case
may be) without further proceedings immediately
upon the death or during the period of absence or
incapacity of the original guardian.
S. 35(2)
amended by
No. 52/1998
s. 121(5)(c).
(2) The alternative guardian must notify the Tribunal
in writing of the death, absence or incapacity of
the original guardian and send to the Tribunal
evidence of the death, absence or incapacity of the
original guardian.
(3) Where an alternative guardian takes over the
office of a guardian, the alternative guardian has
the same powers and duties with respect to the
represented person as the guardian had
immediately before the guardian's death, absence
or incapacity.
34
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35A
Division 5A—Appointment of enduring guardian
35A Appointment of enduring guardian
(1) A person who is of or over the age of 18 years
may, by instrument in writing, appoint a person to
be his or her enduring guardian.
Pt 4 Div. 5A
(Heading and
ss 35A–35E)
inserted by
No. 40/1999
s. 12.
S. 35A
inserted by
No. 40/1999
s. 12.
(1A) A person may, in the same instrument, also
appoint a person to be an alternative enduring
guardian.
S. 35A(1A)
inserted by
No. 41/2002
s. 7(1).
(1B) An alternative enduring guardian takes the place
of, and has the same powers as, the original
enduring guardian if that person is incapable of
acting as the enduring guardian or is absent for a
period.
S. 35A(1B)
inserted by
No. 41/2002
s. 7(1).
(2) An instrument to appoint an enduring guardian is
effective if—
(a) it is in the form of, or to the effect of, Form 1
in Schedule 4; and
(b) it is endorsed with an acceptance in the form
set out in Form 1 in Schedule 4 signed by the
person appointed as the enduring guardian
and the person appointed as the alternative
enduring guardian (if any); and
S. 35A(2)(b)
amended by
No. 41/2002
s. 7(2)(a).
(c) the execution of the instrument by each of
the appointor, the proposed enduring
guardian and the proposed alternative
enduring guardian (if any) is attested by two
witnesses—
S. 35A(2)(c)
amended by
No. 3/2006
s. 16(1)(a).
(i) neither of whom is a party to the
instrument nor a relative to a party to it;
and
35
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35A
S. 35A(2)(c)(ii)
amended by
No. 41/2002
s. 7(2)(b).
S. 35A(2)(c)(iii)
substituted by
No. 3/2006
s. 16(1)(b).
(ii) neither of whom is the person
appointed as the enduring guardian or
alternative enduring guardian (if any);
and
(iii) both of whom have witnessed the
execution of the instrument by the
appointor, the proposed enduring
guardian or the proposed alternative
enduring guardian (as the case requires)
in the presence of that person and each
other; and
(iv) one of whom is authorised by law to
witness the signing of a statutory
declaration.
S. 35A(2A)
inserted by
No. 3/2006
s. 16(2).
(2A) For the avoidance of doubt, it is not necessary—
(a) for the same persons to witness the execution
of the instrument by the appointor, the
proposed enduring guardian and the
proposed alternative enduring guardian
(if any); or
(b) for the appointor, the proposed enduring
guardian and the proposed alternative
enduring guardian to execute the instrument
at the same time or in the presence of each
other.
S. 35A(3)
amended by
No. 41/2002
s. 7(3).
(3) A person is not eligible to be appointed as an
enduring guardian or alternative enduring
guardian unless he or she is of or over the age of
18 years.
S. 35A(4)
amended by
No. 41/2002
s. 7(4).
(4) A person is not eligible to be appointed as an
enduring guardian or alternative enduring
guardian by another person if he or she is, in a
professional or administrative capacity, directly or
indirectly responsible for, or involved in, the care
or treatment of or provides accommodation to that
other person.
36
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35B
(5) If a person who was validly appointed as an
enduring guardian or alternative enduring
guardian becomes ineligible to be appointed
because of subsection (4), that person's
appointment lapses.
35B Authority of enduring guardian
(1) An instrument appointing an enduring guardian
authorises the person appointed to exercise the
powers of a guardian in relation to the matters
specified in that instrument relating to his or her
person or circumstances if, and only to the extent
that, the appointor subsequently becomes unable
by reason of a disability to make reasonable
judgments in respect of any of those matters.
(2) If an instrument appointing an enduring guardian
does not specify the matters in relation to which
the person appointed may exercise the powers of a
guardian, the instrument authorises that person to
exercise the powers of a guardian under section 24
if, and only to the extent that, the appointor
subsequently becomes unable by reason of a
disability to make reasonable judgments in respect
of any of the matters relating to his or her person
or circumstances.
(3) An instrument appointing an enduring guardian
confers on the guardian in respect of the appointor
all the powers and duties which the guardian
would have if he or she were a parent and the
appointor his or her child to the extent that the
instrument authorises the guardian to exercise
such powers and duties.
(4) An enduring guardian cannot, on behalf of the
appointor, consent to any special procedure.
(5) An enduring guardian must exercise his or her
authority in accordance with section 28.
37
S. 35A(5)
substituted by
No. 41/2002
s. 7(5).
S. 35B
inserted by
No. 40/1999
s. 12,
amended by
No. 41/2002
s. 8.
S. 35B(2)
amended by
No. 41/2002
s. 8.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35C
S. 35C
inserted by
No. 40/1999
s. 12.
35C Revocation of appointment by appointor
S. 35C(1)
substituted by
No. 41/2002
s. 9(1).
(1) If a person appoints an enduring guardian or
alternative enduring guardian, any earlier
appointment of an enduring guardian or
alternative enduring guardian (as the case may be)
is revoked.
S. 35C(2)
amended by
No. 41/2002
s. 9(2).
(2) The appointor of an enduring guardian or
alternative enduring guardian may, by instrument
in writing, revoke the appointment.
S. 35C(3)
amended by
No. 41/2002
s. 9(3)(a).
(3) An instrument to revoke an appointment as
enduring guardian or alternative enduring
guardian is effective if—
(a) it is in the form of, or to the effect of, Form 2
in Schedule 4; and
(b) the execution of the instrument is attested by
two witnesses—
(i) neither of whom is a party to the
instrument nor a relative to a party to it;
and
S. 35C(3)(b)(ii)
amended by
No. 41/2002
s. 9(3)(b).
(ii) neither of whom is the person
appointed as the enduring guardian or
alternative enduring guardian (as the
case may be); and
(iii) both of whom have witnessed the
instrument in the presence of the
appointor and each other; and
(iv) one of whom is authorised by law to
witness the signing of a statutory
declaration.
38
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35D
35D Revocation of appointment by Tribunal
(1) The Tribunal may, on an application under this
section and after a hearing, revoke the
appointment of an enduring guardian or
alternative enduring guardian if—
S. 35D
inserted by
No. 40/1999
s. 12.
S. 35D(1)
amended by
No. 41/2002
s. 10.
(a) the enduring guardian or alternative enduring
guardian seeks revocation of the
appointment; or
S. 35D(1)(a)
amended by
No. 41/2002
s. 10.
(b) the Tribunal is satisfied that the enduring
guardian or alternative enduring guardian—
S. 35D(1)(b)
amended by
No. 41/2002
s. 10.
(i) is not able or willing to act in that
capacity; or
(ii) has, in that capacity, not acted in the
best interests of the appointor or has
acted in an incompetent or negligent
manner.
(2) An application may be made by—
(a) the Public Advocate; or
(b) the enduring guardian or alternative enduring
guardian; or
S. 35D(2)(b)
amended by
No. 41/2002
s. 10.
(c) the administrator of the appointor's estate; or
(d) any other person who the Tribunal is
satisfied has an interest in the person or in
the estate of the person in respect of whom
the application is made.
(3) An appointment of an enduring guardian or
alternative enduring guardian is not revoked if the
appointor becomes a represented person.
39
S. 35D(3)
amended by
No. 41/2002
s. 10.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 35E
S. 35E
inserted by
No. 40/1999
s. 12.
35E Advice or direction of Tribunal
(1) An enduring guardian may apply to the Tribunal
for an advisory opinion or directions on any
matter or question relating to the scope of his or
her appointment as such or the exercise of any
power by the guardian under the instrument of
appointment.
(2) The Tribunal may—
(a) give an advisory opinion or any directions it
considers necessary;
(b) vary the effect of the instrument appointing
the enduring guardian;
(c) suspend for a specified period the authority,
either generally or in respect of a specific
matter, of an enduring guardian under an
instrument of appointment;
(d) make any order it considers necessary.
(3) The Tribunal of its own motion may direct, or
give an advisory opinion to, an enduring guardian
in respect of any matter.
(4) An action does not lie against an enduring
guardian on account of an act or thing done or
omitted to be done by the guardian in accordance
with any order, directions or advisory opinion of
the Tribunal made or given under this section
unless in representing the facts to the Tribunal the
guardian has been guilty of fraud, wilful
concealment or misrepresentation.
40
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4—Guardianship Orders
s. 36
*
*
*
_______________
41
*
*
Pt 4 Div. 6
(Heading and
ss 36–42)
amended by
Nos 33/1989
s. 5(2),
23/1994
s. 118(Sch. 1
item 23.2),
52/1998
ss 121(5)(c),
122–124,
repealed by
No. 40/1999
s. 13.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 36
Pt 4A
(Heading and
ss 36–42O)
inserted by
No. 40/1999
s. 14.
PART 4A—MEDICAL AND OTHER TREATMENT
Division 1—Preliminary
New s. 36
inserted by
No. 40/1999
s. 14.
S. 36(1)
amended by
No. 41/2002
s. 11.
S. 36(1)(b)
amended by
No. 3/2006
s. 6(1)(a).
S. 36(2)
amended by
No. 3/2006
s. 6(1)(a).
36 Persons to whom Part applies
(1) In this Part, patient means a person with a
disability who—
(a) is of or over the age of 18 years; and
(b) is incapable of giving consent, within the
meaning of subsection (2), to the carrying
out of a special procedure, a medical
research procedure or medical or dental
treatment, whether or not the person is a
represented person.
(2) For the purposes of paragraph (b) of the definition
of patient in subsection (1), a person is incapable
of giving consent to the carrying out of a special
procedure, a medical research procedure or
medical or dental treatment if the person—
(a) is incapable of understanding the general
nature and effect of the proposed procedure
or treatment; or
(b) is incapable of indicating whether or not he
or she consents or does not consent to the
carrying out of the proposed procedure or
treatment.
42
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 37
37 Person responsible
New s. 37
inserted by
No. 40/1999
s. 14.
(1) In this Part, person responsible, in relation to a
patient and in relation to a proposed medical
research procedure or proposed medical or dental
treatment, means the first person listed below who
is responsible for the patient and who, in the
circumstances, is reasonably available and willing
and able to make a decision under this Part—
S. 37(1)
amended by
No. 3/2006
s. 6(1)(b)(i).
(a) a person appointed by the patient under
section 5A of the Medical Treatment
Act 1988;
(b) a person appointed by the Tribunal to make
decisions in relation to the proposed
procedure or treatment;
S. 37(1)(b)
amended by
No. 3/2006
s. 6(1)(b)(ii).
(c) a person appointed under a guardianship
order with power to make decisions in
relation to the proposed procedure or
treatment;
S. 37(1)(c)
amended by
No. 3/2006
s. 6(1)(b)(ii).
(d) a person appointed by the patient (before the
patient became incapable of giving consent)
as an enduring guardian with power to make
decisions in relation to the proposed
procedure or treatment;
S. 37(1)(d)
amended by
No. 3/2006
s. 6(1)(b)(ii).
(e) a person appointed in writing by the patient
(being the person appointed last in time
before the patient became incapable of
giving consent) to make decisions in relation
to medical research procedures that include
the proposed procedure or medical or dental
treatment which includes the proposed
treatment;
S. 37(1)(e)
amended by
No. 3/2006
s. 6(1)(b)(iii).
43
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 37
S. 37(1)(f)
amended by
No. 27/2001
s. 9(Sch. 7
item 2.4(a)).
(f) the patient's spouse or domestic partner;
(g) the patient's primary carer;
(h) the patient's nearest relative within the
meaning of paragraphs (a) to (g) of the
definition of nearest relative in section 3.
S. 37(2)
amended by
No. 41/2002
s. 12(1).
(2) The circumstances in which a person is to be
regarded as having the care of a patient include,
but are not limited to, the case where the person,
other than wholly or substantially on a
commercial basis, regularly—
(a) provides domestic services and support to
the patient; or
(b) arranges for the patient to be provided with
domestic services and support.
S. 37(3)
amended by
No. 49/2010
s. 229(3).
(3) A patient who is cared for in an institution (such
as a hospital, community residential unit,
residential care service or State funded residential
care service within the meaning of the Health
Services Act 1988) or a supported residential
service within the meaning of the Supported
Residential Services (Private Proprietors) Act
2010 at which he or she is cared for by some other
person is not, by reason only of that fact, to be
regarded as being in the care of that other person
and remains in the care of the person in whose
care he or she was immediately before being cared
for in that institution.
S. 37(4)
amended by
No. 27/2001
s. 9(Sch. 7
item 2.4(b)(i)).
(4) For the purposes of this section, a reference to the
spouse or domestic partner of a patient—
44
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 37
(a) is a reference to a spouse or domestic partner
who is not under guardianship and with
whom the patient has a close and continuing
relationship; and
*
*
*
*
*
S. 37(4)(a)
amended by
No. 27/2001
s. 9(Sch. 7
item 2.4(b)(i)).
S. 37(4)(b)
repealed by
No. 27/2001
s. 9(Sch. 7
item 2.4(b)(ii)).
(5) If the person responsible for a patient is an agent
appointed under section 5A of the Medical
Treatment Act 1988, the powers the person may
exercise as an agent under that Act are in addition
to the powers the person may exercise under
this Act.
(6) For the purposes of subsection (1)(h), if the
patient—
(a) is likely to be capable, within a reasonable
time, of giving consent to the carrying out of
a special procedure or medical or dental
treatment; and
S. 37(6)
inserted by
No. 41/2002
s. 12(2).
(b) objects to a relative referred to in
paragraphs (a) to (g) of the definition of
nearest relative in section 3(1) being
involved in decisions concerning a special
procedure to be carried out on the patient or
the patient's medical or dental treatment—
that relative is taken not to be the nearest relative
of the patient.
(7) For the purposes of subsection (1)(h), if the
patient—
(a) is likely to be capable of giving consent to
the carrying out of a medical research
procedure, but not within a reasonable time
as determined in accordance with section
42R(2); and
45
S. 37(7)
inserted by
No. 3/2006
s. 6(2).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 38
(b) objects to a relative referred to in
paragraphs (a) to (g) of the definition of
"nearest relative" in section 3(1) being
involved in decisions concerning the patient
that would include a medical research
procedure being carried out on the patient—
that relative is taken not to be the nearest relative
of the patient.
New s. 38
inserted by
No. 40/1999
s. 14,
amended by
No. 41/2002
s. 13 (ILA
s. 39B(1)).
38 Best interests
(1) In this Part, for the purposes of determining
whether any special procedure or any medical or
dental treatment would be in the best interests of
the patient, the following matters must be taken
into account—
(a) the wishes of the patient, so far as they can
be ascertained; and
(b) the wishes of any nearest relative or any
other family members of the patient; and
(c) the consequences to the patient if the
treatment is not carried out; and
(d) any alternative treatment available; and
(e) the nature and degree of any significant risks
associated with the treatment or any
alternative treatment; and
(f) whether the treatment to be carried out is
only to promote and maintain the health and
well-being of the patient; and
(g) any other matters prescribed by the
regulations.
S. 38(2)
inserted by
No. 41/2002
s. 13.
(2) For the purposes of subsection (1)(b), if the
patient—
(a) is likely to be capable, within a reasonable
time, of giving consent to the carrying out of
46
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 39
a special procedure or medical or dental
treatment; and
(b) objects to—
(i) a relative referred to in paragraphs (a)
to (g) of the definition of nearest
relative in section 3(1); or
(ii) another family member (other than the
patient's spouse or domestic partner)—
being involved in decisions concerning a
special procedure to be carried out on the
patient or the patient's medical or dental
treatment—
that relative or family member is taken not to be
the nearest relative or a family member of the
patient.
Division 2—Consent
39 Persons who may consent to medical or other
treatment
(1) Subject to Divisions 4 and 5, consent to the
carrying out of a special procedure or medical or
dental treatment on a patient may be given—
(a) in the case of a special procedure or any
medical or dental treatment, by the Tribunal;
or
New s. 39
inserted by
No. 40/1999
s. 14,
amended by
Nos 41/2002
s. 14, 3/2006
s. 6(3) (ILA
s. 39B(1)).
(b) in the case of any medical or dental
treatment, by the person responsible for the
patient.
(2) Division 6 contains provisions for the giving of
consent in relation to the carrying out of a medical
research procedure on a patient.
47
S. 39(2)
inserted by
No. 3/2006
s. 6(3).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 40
New s. 40
inserted by
No. 40/1999
s. 14,
amended by
Nos 41/2002
s. 15, 3/2006
s. 6(4)(a).
40 Effect of consent
A consent given in accordance with this Part in
respect of the carrying out of a special procedure,
a medical research procedure or any medical or
dental treatment on a patient has effect as if—
(a) the patient had been capable of giving
consent to the carrying out of the procedure
or treatment; and
(b) the procedure or treatment had been carried
out with the consent of the patient.
New s. 41
inserted by
No. 40/1999
s. 14,
amended by
Nos 41/2002
s. 16, 3/2006
s. 6(4)(b).
41 Refusal of medical treatment under the Medical
Treatment Act 1988
New s. 42
inserted by
No. 40/1999
s. 14.
42 Unlawful consent to medical or other treatment an
offence
S. 42(a)
amended by
No. 3/2006
s. 6(4)(c).
A registered practitioner must not carry out any
medical or dental treatment, medical research
procedure or special procedure, (including any
emergency treatment) under this Part that is
medical treatment within the meaning of the
Medical Treatment Act 1988 if a refusal of that
treatment is in force in accordance with that Act.
A person must not—
(a) purport to give consent to the continuation of
a special procedure or a further special
procedure under section 42F, or to a medical
research procedure or to any medical or
dental treatment on behalf of a patient; or
(b) represent to a registered practitioner that he
or she is authorised to give such consent—
knowing that he or she is not authorised to give
such consent or without reasonable grounds for
believing that he or she is authorised to give such
consent.
Penalty: 20 penalty units.
48
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42A
Division 3—Emergency treatment
42A Emergency medical or dental treatment
(1) A registered practitioner may carry out, or
supervise the carrying out of, a special procedure,
a medical research procedure or medical or dental
treatment on a patient without consent under this
Part or authorisation under section 42T if the
practitioner believes on reasonable grounds that
the procedure or treatment is necessary, as a
matter of urgency—
S. 42A
inserted by
No. 40/1999
s. 14.
S. 42A(1)
amended by
No. 3/2006
s. 6(4)(d)(i).
(a) to save the patient's life; or
(b) to prevent serious damage to the patient's
health; or
(c) in the case of a medical research procedure
or medical or dental treatment, to prevent the
patient from suffering or continuing to suffer
significant pain or distress.
S. 42A(1)(c)
amended by
No. 3/2006
s. 6(4)(d)(ii).
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out, of a
special procedure, a medical research procedure or
medical or dental treatment in the belief on
reasonable grounds that the requirements of this
Division and, in the case of a medical research
procedure, section 42Q have been complied with
is not—
S. 42A(2)
amended by
No. 3/2006
s. 6(4)(e)(i)(ii).
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
49
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42B
S. 42A(2)(c)
amended by
No. 3/2006
s. 6(4)(e)(iii).
S. 42A(2)(d)
inserted by
No. 3/2006
s. 6(4)(f).
(c) liable in any civil proceedings for assault or
battery; or
(d) guilty of an offence against section 42G(1)
or 42Y(1).
(3) Nothing in this Division affects any duty of care
owed by a registered practitioner to a patient.
Division 4—Special procedures
S. 42B
inserted by
No. 40/1999
s. 14.
42B Application for consent of Tribunal to special
procedure
(1) An application for the consent of the Tribunal to
the carrying out of any special procedure on a
patient may be made by—
(a) the person responsible for the patient; or
(b) any person who, in the opinion of the
Tribunal, has a special interest in the affairs
of the patient.
(2) If an application for consent is made under this
Division, the patient is a party to the proceedings.
(3) The Tribunal must give notice of an application,
of the hearing of the application and of any order,
directions or advisory opinion of the Tribunal in
respect of the application to—
(a) the Public Advocate; and
(b) any other person whom the Tribunal
considers has a special interest in the affairs
of the patient.
50
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42C
42C Guidelines for special procedures
The Tribunal may—
(a) in consultation with the Public Advocate and
the Secretary to the Department of Justice;
and
S. 42C
inserted by
No. 40/1999
s. 14.
(b) with the approval of the Governor in
Council—
issue and make available to members of the public
guidelines specifying situations in which
applications may be made to the Tribunal under
this Division.
42D Date for hearing
The Tribunal must commence to hear an
application under this Division within 30 days
after the day on which the application is received
by the Tribunal.
42E Consent of Tribunal to special procedure
On hearing an application under this Division, the
Tribunal may consent to the carrying out of a
special procedure only if it is satisfied that—
(a) the patient is incapable of giving consent;
and
(b) the patient is not likely to be capable, within
a reasonable time, of giving consent; and
(c) the special procedure would be in the
patient's best interests.
51
S. 42D
inserted by
No. 40/1999
s. 14,
amended by
No. 78/2000
s. 10(1).
S. 42E
inserted by
No. 40/1999
s. 14,
substituted by
Nos 41/2002
s. 17, 3/2006
s. 7.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42F
S. 42F
inserted by
No. 40/1999
s. 14.
42F Tribunal may confer authority to consent to
continuing or further special procedure
(1) If the Tribunal consents to the carrying out of a
special procedure on a patient, the Tribunal may
confer on the person responsible for the patient
authority to consent to—
(a) the continuation of the special procedure; or
(b) the carrying out of any further special
procedure of a similar nature.
(2) The Tribunal may confer an authority under this
section only at the request, or with the consent, of
the person responsible.
(3) If a person on whom the Tribunal has conferred
authority under this section ceases to be the
person responsible, the Tribunal, on the
application of the new person responsible, may
confer authority under this section on that person.
(4) The Tribunal may at any time—
(a) impose conditions or give directions as to
the exercise of an authority under this
section; or
(b) revoke that authority.
(5) If the Tribunal confers an authority under this
section, a person may request the consent of the
person responsible to the carrying out of the
special procedure.
52
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42G
42G Special procedure without consent of Tribunal an
offence
(1) Subject to section 42A, a registered practitioner
must not carry out, or supervise the carrying out
of, any special procedure on a patient unless—
(a) the Tribunal has consented to the carrying
out of that procedure; or
(b) the person responsible with authority to
consent to the continuation of the procedure
or a further special procedure under
section 42F has consented to the carrying out
of that procedure.
Penalty: Imprisonment for 2 years or
240 penalty units or both.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of, a
special procedure on a patient in the belief on
reasonable grounds that the requirements of this
Division have been complied with and in reliance
on—
(a) a consent given by another person whom the
registered practitioner believed on
reasonable grounds was authorised to give
such consent; or
(b) a purported consent given by another person
whom the registered practitioner believed on
reasonable grounds was authorised to give
such consent but was not so authorised—
is not—
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
53
S. 42G
inserted by
No. 40/1999
s. 14.
S. 42G(1)
amended by
No. 3/2006
s. 8(1)(a).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42H
S. 42G(2)(e)
amended by
No. 3/2006
s. 8(1)(b).
S. 42G(2)(f)
inserted by
No. 3/2006
s. 8(1)(c).
(e) liable in any civil proceedings for assault or
battery; or
(f) guilty of an offence against subsection (1).
(3) Nothing in this Division affects any duty of care
owed by a registered practitioner to a patient.
Division 5—Other medical or dental treatment
S. 42H
inserted by
No. 40/1999
s. 14.
Note to
s. 42H(1)
inserted by
No. 41/2002
s. 18.
42H Consent of person responsible
(1) The person responsible for a patient may consent
to the carrying out of any medical or dental
treatment.
Note
However, section 42HA affects whether the person
responsible may consent to the carrying out of medical or
dental treatment in certain circumstances.
(2) In determining whether or not to consent to
medical or dental treatment, the person
responsible must act in the best interests of the
patient.
S. 42HA
inserted by
No. 41/2002
s. 19.
42HA Consent if patient is likely to recover within a
reasonable time
(1) This section applies despite anything else in this
Part but does not apply to emergency treatment
under section 42A.
(2) If a patient is likely to be capable, within a
reasonable time, of giving consent to the carrying
out of medical or dental treatment, the person
responsible for the patient can only consent to the
carrying out of the treatment, and a registered
practitioner can only carry out that treatment, if—
54
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42HA
(a) the registered practitioner reasonably
believes, and states in writing in the patient's
clinical records, that a further delay in
carrying out the treatment would result in a
significant deterioration of the patient's
condition; and
(b) neither the registered practitioner nor the
person responsible has any reason to believe
that the carrying out of the treatment would
be against the patient's wishes.
(3) If the registered practitioner or person responsible
has reason to believe that the carrying out of the
treatment would be against the patient's wishes,
the practitioner or person responsible may apply
to the Tribunal for its consent to the carrying out
of the treatment.
(4) The Tribunal must—
(a) give notice of the application and of any
order, directions or advisory opinion made or
given concerning the application to—
(i) the Public Advocate; and
(ii) any other person whom the Tribunal
considers has a special interest in the
patient's affairs, including the registered
practitioner and person responsible for
the patient; and
(b) start hearing the application within 14 days
after the day on which the Tribunal received
it.
(5) The patient is a party to the proceeding on the
application.
55
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42I
(6) On hearing the application, the Tribunal may
consent to the carrying out of the medical or
dental treatment, and a registered practitioner may
carry out that treatment, if the Tribunal is satisfied
that—
(a) the patient is incapable of giving consent;
and
(b) a further delay in carrying out the treatment
would result in a significant deterioration of
the patient's condition; and
(c) the treatment would be in the patient's best
interests, having regard to the evidence (if
any) of the patient's views about such
treatment.
S. 42I
inserted by
No. 40/1999
s. 14.
42I Person responsible may seek advice
(1) The person responsible for a patient may apply to
the Tribunal for directions or an advisory opinion
on any matter or question relating to the scope or
exercise of his or her authority to consent to
medical or dental treatment on behalf of the
patient.
(2) The Tribunal must give notice to any person
whom the Tribunal considers has a special interest
in the affairs of the patient of the application, of
the hearing of the application and of any order,
directions or advisory opinion of the Tribunal in
respect of the application.
(3) The Tribunal may—
(a) give any directions or advisory opinion it
considers necessary;
(b) make any order it considers necessary.
56
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42J
(4) The Tribunal of its own motion may direct, or
give an advisory opinion to, the person
responsible for a patient in respect of any matter.
(5) An action does not lie against the person
responsible for a patient on account of an act or
thing done or omitted to be done by that person in
accordance with any order, directions or advisory
opinion of the Tribunal made or given under this
section unless in representing the facts to the
Tribunal that person has been guilty of fraud,
wilful concealment or misrepresentation.
42J Guidelines for medical or dental treatment
The Tribunal may—
S. 42J
inserted by
No. 40/1999
s. 14.
(a) in consultation with the Public Advocate and
the Secretary to the Department of Justice;
and
(b) with the approval of the Governor in
Council—
issue and make available to members of the public
guidelines specifying situations in which the
person responsible for a patient may consent to
medical or dental treatment in respect of the
patient.
42K Medical or dental treatment without consent of
person responsible
(1) Subject to section 41, a registered practitioner
may carry out, or supervise the carrying out of,
medical or dental treatment under this section
without the consent of the person responsible if—
(a) the practitioner has made reasonable
efforts—
(i) to ascertain whether there is a person
responsible and, if so, who that person
is; and
57
S. 42K
inserted by
No. 40/1999
s. 14.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42K
(ii) if the practitioner ascertains who the
person responsible is, to contact that
person to obtain his or her consent to
the proposed treatment—
but the practitioner has been unable to
ascertain whether there is a person
responsible or who that person is or to
contact that person; and
(b) the practitioner believes on reasonable
grounds that the proposed treatment is in the
best interests of the patient; and
(c) the practitioner, before carrying out, or
supervising the carrying out of, the medical
or dental treatment, gives notice to the Public
Advocate in accordance with subsection (2).
(2) A notice referred to under subsection (1)(c) must
include the following information—
(a) the nature of the patient's condition;
(b) the medical or dental treatment the registered
practitioner proposes carrying out on the
patient; and
(c) that the practitioner believes on reasonable
grounds that the proposed treatment is in the
best interests of the patient; and
(d) that despite reasonable efforts by the
practitioner, the practitioner has been unable
to ascertain whether there is a person
responsible for the patient or, if there is a
person responsible, the practitioner has been
unable to ascertain who that person is or to
contact that person.
(3) A registered practitioner who carries out, or
supervises the carrying out of, medical or dental
treatment on a patient under this section must state
58
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42L
in writing in the clinical records relating to that
patient—
(a) why the treatment is considered to be in the
best interests of the patient; and
(b) how the treatment is considered to promote
or maintain the health and well-being of the
patient.
42L Medical or dental treatment if person responsible
does not consent
(1) Subject to section 41, a registered practitioner
may carry out, or supervise the carrying out of,
medical or dental treatment under this section if—
(a) the registered practitioner has consulted the
person responsible for a patient; and
(b) the person responsible does not consent to
the proposed medical or dental treatment;
and
(c) the practitioner nevertheless believes on
reasonable grounds that the proposed
treatment is in the best interests of the
patient; and
(d) the practitioner, within 3 days after the
person responsible has communicated to the
practitioner that he or she does not consent,
gives to that person and the Public Advocate
a statement under section 42M.
(2) A registered practitioner must not carry out, or
supervise the carrying out of, any medical or
dental treatment under this section (other than
emergency treatment)—
(a) if the person responsible does not apply to
the Tribunal within 7 days after receiving a
statement under section 42M, earlier than
7 days after giving the person responsible the
statement; or
59
S. 42L
inserted by
No. 40/1999
s. 14.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42M
(b) if the person responsible applies to the
Tribunal within 7 days after receiving a
statement under section 42M, earlier than
14 days after giving the person responsible
the statement; or
(c) if the Tribunal makes an order under
section 42N that the treatment is not in the
best interests of the patient; or
(d) if the person responsible appeals from an
order of the Tribunal made under section
42N, before the determination of the appeal.
(3) If the person responsible does not apply to the
Tribunal in accordance with subsection (2)(a) and
a registered practitioner carries out, or supervises
the carrying out of, medical or dental treatment on
a patient under this section, the practitioner must
state in writing in the clinical records relating to
that patient—
(a) why the treatment is considered to be in the
best interests of the patient; and
(b) how the treatment is considered to promote
or maintain the health and well-being of the
patient.
S. 42M
inserted by
No. 40/1999
s. 14.
42M Statement by registered practitioner
(1) A statement referred to in section 42L must be in
writing and must be dated and signed by the
registered practitioner.
(2) A statement must state that—
(a) the person responsible for the patient has
been informed about the nature of the
patient's condition to an extent that would be
sufficient to enable the patient, if he or she
were able to consent, to decide whether or
not to consent to the proposed treatment
60
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42N
generally or to treatment of a particular kind
for that condition; and
(b) the person responsible has not consented to
the proposed treatment; and
(c) the registered practitioner believes on
reasonable grounds that the proposed
treatment is in the best interests of the
patient; and
(d) unless the person responsible applies to the
Tribunal and the Tribunal otherwise orders,
the practitioner will, not earlier than 7 days
after giving the statement to the person
responsible, carry out the proposed
treatment.
(3) A statement must set out the procedures under the
Victorian Civil and Administrative Tribunal
Act 1998 for making an application to the
Tribunal.
42N Application to Tribunal relating to medical or
dental treatment
(1) An application may be made to the Tribunal in
relation to any matter, question or dispute under
this Part relating to medical or dental treatment or
relating to the best interests of a patient.
(2) An application may be made by—
(a) a person responsible; or
(b) a person who, in the opinion of the Tribunal,
has a special interest in the affairs of the
patient, including a registered practitioner
(if any).
(3) If an application is made under this section, the
patient is a party to the proceeding.
61
S. 42N
inserted by
No. 40/1999
s. 14.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42N
(4) The Tribunal must give notice of an application,
of the hearing of the application and of any order
of the Tribunal in respect of the application to—
(a) the Public Advocate; and
(b) if the application is made after a statement
has been given under section 42M, the
registered practitioner who gave the
statement; and
(c) any other person whom the Tribunal
considers has a special interest in the affairs
of the patient.
(5) If the person responsible for a patient, after
receiving a statement under section 42M, makes
an application to the Tribunal—
(a) the person responsible must apply to the
Tribunal within 7 days after receiving the
statement; and
(b) the Tribunal must hear and determine the
application within 7 days after receiving it.
(6) On an application under this section, the
Tribunal—
(a) may make an order that for matters relating
to medical or dental treatment, either
generally or of a particular kind, a person
specified in the order is to be the person
responsible;
(b) may appoint a person as guardian of the
patient generally or for matters relating to the
medical or dental treatment of a patient;
(c) may vary a guardianship order to make
provision for matters relating to the medical
or dental treatment of a patient;
62
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42O
(d) may revoke, suspend or vary an instrument
appointing a person as the enduring guardian
to the extent that the instrument relates to
medical or dental treatment of a patient;
(e) may make an order that any proposed
medical or dental treatment is or is not in the
best interests of the patient;
(f) may make any orders or give any directions
it considers necessary to resolve any conflict
between persons relating to the best interests
of a patient;
(g) may make a declaration as to the validity or
effect of any decision relating to medical or
dental treatment;
(h) may give an advisory opinion in relation to
the best interests of a patient;
(i) may make any other orders it considers to be
in the best interests of the patient.
(7) An application cannot be made, and the Tribunal
cannot make any order, under this section in
relation to a medical research procedure.
S. 42N(7)
inserted by
No. 3/2006
s. 8(2).
Note
Sections 42V, 42W and 42X provide for the Tribunal's
jurisdiction in relation to medical research procedures.
42O Protection of registered practitioner
(1) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
medical or dental treatment on a patient in
accordance with this Division in reliance on—
(a) a consent given by another person whom the
registered practitioner believed on
reasonable grounds was authorised to give
such consent; or
63
S. 42O
inserted by
No. 40/1999
s. 14.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42P
(b) a purported consent given by another person
whom the registered practitioner believed on
reasonable grounds was authorised to give
such consent but was not so authorised—
is not—
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
(e) liable in any civil proceedings for assault or
battery.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
medical or dental treatment on a patient in
accordance with this Division without the consent
of another person and in the belief on reasonable
grounds that the requirements of this Division
have been complied with is not—
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for assault or
battery.
(3) Nothing in this section affects any duty of care
owed by a registered practitioner to a patient.
Pt 4A Div. 6
(Heading and
ss 42P–42Z)
inserted by
No. 3/2006
s. 9.
S. 42P
inserted by
No. 3/2006
s. 9.
Division 6—Medical research procedures
42P Introduction and outline of Division
(1) This Division contains provisions for the carrying
out of a medical research procedure on a patient.
Note
See section 36 for the definition of patient.
64
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42P
(2) In essence, this Division provides a 4 step process
for authorising the carrying out of a medical
research procedure on a patient, as follows—
(a) step 1 is to determine whether the relevant
research project is approved by the relevant
human research ethics committee—see
section 42Q;
(b) step 2 is to determine whether the patient is
likely to recover the capacity to consent to
the procedure within a reasonable time—see
section 42R;
(c) step 3 is to seek the consent of the person
responsible for the patient, which only
applies where allowed by section 42R—see
section 42S;
(d) step 4 is procedural authorisation, which
only applies where allowed by section 42R
and the person responsible cannot be
ascertained or contacted—see section 42T.
(3) Steps 2, 3 and 4 referred to in subsection (2) do
not apply to the carrying out of a medical research
procedure under section 42A.
Note
Section 42A provides for the carrying out of a medical
research procedure without consent in emergency situations.
(4) This Division also provides that—
(a) the Tribunal has jurisdiction in various
circumstances—see sections 42V, 42W
and 42X;
(b) offences may be committed by registered
practitioners who fail to comply with the
Division—see section 42Y;
(c) registered practitioners who comply with the
Division are protected from civil and
criminal liability—see section 42Z.
65
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42Q
(5) This Division is subject to section 41, which
prohibits the carrying out of medical treatment if a
refusal of that treatment is in force under the
Medical Treatment Act 1988.
S. 42Q
inserted by
No. 3/2006
s. 9.
42Q Step 1—Approval of relevant research project
(1) Step 1 is to determine whether the relevant
research project has been approved by the relevant
human research ethics committee.
(2) A medical research procedure must not be carried
out on a patient if the relevant research project has
not been approved by the relevant human research
ethics committee.
(3) A medical research procedure must be carried out
in accordance with the relevant human research
ethics committee approval, including any
conditions of that approval.
S. 42R
inserted by
No. 3/2006
s. 9.
42R Step 2—Is patient likely to recover within a
reasonable time?
(1) Step 2 is to determine whether the patient is likely
to be capable, within a reasonable time, of giving
consent to the carrying out of a medical research
procedure.
(2) The reasonable time is the time by which, given
the nature of the relevant research project, the
procedure would need to be performed on the
patient, having regard to—
(a) the medical or physical condition of the
patient; or
(b) the stage of treatment or care; or
(c) other circumstances specific to the patient.
(3) If a patient is likely to be capable, within a
reasonable time as determined in accordance with
subsection (2), of giving consent to the carrying
out of a medical research procedure, a registered
66
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42S
practitioner must not carry out, or supervise the
carrying out of, the procedure under the authority
of a consent under section 42S or procedural
authorisation under section 42T.
(4) If a patient is not likely to be capable, within a
reasonable time as determined in accordance with
subsection (2), of giving consent to the carrying
out of a medical research procedure, a registered
practitioner may carry out, or supervise the
carrying out of, the procedure under the authority
of a consent under section 42S or procedural
authorisation under section 42T.
(5) Before, or as soon as practicable after, carrying
out, or supervising the carrying out of, the medical
research procedure, the registered practitioner
must state his or her belief that, at the time of the
procedure, the patient is or was not likely to be
capable of giving consent within a reasonable time
and the reason for that belief in writing in the
patient's clinical records.
Note
This section does not apply to a medical research procedure
under section 42A—see section 42P(3).
42S Step 3—Consent of person responsible
(1) Step 3 is to seek the consent of the person
responsible for the patient to the carrying out of
the medical research procedure on the patient.
Note
This section does not apply to a medical research procedure
under section 42A—see section 42P(3).
(2) The person responsible may consent to the
carrying out of a medical research procedure on
the patient.
67
S. 42S
inserted by
No. 3/2006
s. 9.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42T
(3) The person responsible may only consent to the
carrying out of the procedure if he or she believes
that the carrying out of the procedure would not
be contrary to the best interests of the patient.
(4) The consent must be consistent with the
requirements for consent, if any, specified in the
relevant human research ethics committee
approval for the relevant research project or the
conditions of that approval.
S. 42T
inserted by
No. 3/2006
s. 9.
42T Step 4—Procedural authorisation
(1) Step 4 is procedural authorisation for the carrying
out of the medical research procedure on the
patient, which applies only if the person
responsible for the patient cannot be ascertained
or contacted.
Note
This section does not apply to a medical research procedure
under section 42A—see section 42P(3).
(2) A registered practitioner may carry out, or
supervise the carrying out of, a medical research
procedure on a patient without the consent under
section 42S of the person responsible for the
patient if—
(a) the patient is not likely to be capable, within
a reasonable time as determined in
accordance with section 42R(2), of giving
consent to the carrying out of the procedure;
and
(b) steps that are reasonable in the circumstances
have been taken—
(i) to ascertain whether there is a person
responsible and, if so, who that person
is; and
68
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42T
(ii) if the person responsible is ascertained,
to contact that person to seek his or her
consent to the proposed procedure
under section 42S—
but it has not been possible to ascertain
whether there is a person responsible or who
that person is or to contact that person; and
(c) the practitioner believes on reasonable
grounds that inclusion of the patient in the
relevant research project, and being the
subject of the proposed procedure, would not
be contrary to the best interests of the
patient; and
(d) the practitioner does not have any reason to
believe that the carrying out of the procedure
would be against the patient's wishes; and
(e) the practitioner believes on reasonable
grounds that the relevant human research
ethics committee has approved the relevant
research project in the knowledge that a
patient may participate in the project without
the prior consent of the patient or the person
responsible; and
(f) the practitioner believes on reasonable
grounds that—
(i) one of the purposes of the relevant
research project is to assess the
effectiveness of the therapy being
researched; and
(ii) the medical research procedure poses
no more of a risk to the patient than the
risk that is inherent in the patient's
condition and alternative treatment; and
(g) the practitioner believes on reasonable
grounds that the relevant research project is
based on valid scientific hypotheses that
69
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42T
support a reasonable possibility of benefit for
the patient as compared with standard
treatment.
(3) Before, or as soon as practicable after, the medical
research procedure is carried out, the practitioner
supervising the carrying out of the procedure
(or, if there is no such person, the practitioner
carrying out the procedure) must sign a
certificate—
(a) certifying as to each of the matters set out in
subsection (2); and
(b) stating that the person responsible (if any) or
the patient (if the patient gains or regains
capacity) will be informed as required by
subsection (4).
(4) A registered practitioner involved in the relevant
research project must inform the person
responsible (if any) or the patient (if the patient
gains or regains capacity) as soon as reasonably
practicable of—
(a) the patient's inclusion in the relevant
research project; and
(b) the option to refuse consent for the procedure
to be continued and withdraw the patient
from future participation in the project
without compromising the patient's ability to
receive any available alternative treatment or
care.
(5) The registered practitioner supervising the
carrying out of the procedure (or, if there is no
such person, the registered practitioner carrying
out the procedure) must—
(a) forward a copy of the certificate referred to
in subsection (3) to the Public Advocate and
the relevant human research ethics
committee as soon as practicable (and in any
70
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42T
event within 2 working days) after
supervising the carrying out of, or carrying
out, the procedure; and
(b) ensure that the certificate is kept in the
patient's clinical records.
(6) If—
(a) the medical research procedure is a
procedure extending over a period exceeding
one month after a copy of the certificate is
forwarded to the Public Advocate and the
relevant human research ethics committee
under subsection (5); and
(b) the registered practitioner supervising the
carrying out of the procedure (or, if there is
no such person, the registered practitioner
carrying out the procedure) believes on
reasonable grounds that—
(i) the requirements of subsections (2)(b)
and (8) (if applicable) have been met
but the person responsible has not been
able to be ascertained or contacted; and
(ii) the patient has not gained or regained
the capacity to consent—
the practitioner must, at intervals of not more than
one month while the procedure continues, sign a
certificate, and forward a copy to the Public
Advocate and the relevant human research ethics
committee, certifying that each of the matters set
out in subsection (2) continue to apply.
(7) The registered practitioner supervising the
carrying out of the procedure (or, if there is no
such person, the registered practitioner carrying
out the procedure) must ensure that each
certificate under subsection (6) is kept in the
patient's clinical records.
71
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42U
(8) If a medical research procedure is being carried
out on a patient under the authority of this section,
steps that are reasonable in the circumstances
must continue to be taken (as the case requires)—
(a) to ascertain whether there is a person
responsible and, if so, who that person is;
and
(b) if the person responsible is ascertained, to
contact that person to seek his or her consent
to the proposed procedure.
Note
If the person responsible is contacted and is willing and able
to make a decision (see section 37), section 42S applies. If
the patient gains or regains capacity to consent, his or her
consent must be sought, as he or she will no longer be a
person to which this Division applies.
S. 42U
inserted by
No. 3/2006
s. 9.
42U Best interests
(1) In this Division, for the purposes of determining
whether a medical research procedure would or
would not be contrary to the best interests of a
patient, the following matters must be taken into
account—
(a) the wishes of the patient, so far as they can
be ascertained; and
(b) the wishes of any nearest relative or any
other family members of the patient; and
(c) the nature and degree of any benefits,
discomforts and risks for the patient in
having or not having the procedure; and
(d) any other consequences to the patient if the
procedure is or is not carried out; and
(e) any other prescribed matters.
72
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42V
(2) For the purposes of subsection (1)(b), if the
patient—
(a) is likely to be capable of giving consent to
the carrying out of a medical research
procedure, but not within a reasonable
time as determined in accordance with
section 42R(2); and
(b) objects to—
(i) a relative referred to in paragraphs (a)
to (g) of the definition of nearest
relative in section 3(1); or
(ii) another family member (other than the
patient's spouse or domestic partner)—
being involved in decisions concerning the
patient that would include a medical research
procedure being carried out on the patient—
that relative or family member is taken not to be
the nearest relative or a family member of the
patient.
42V Applications to Tribunal
(1) An application may be made to the Tribunal in
relation to any matter, question or dispute under
this Division relating to the best interests of a
patient.
(2) An application may be made by—
(a) a person responsible; or
(b) a person who, in the opinion of the Tribunal,
has a special interest in the affairs of the
patient, including a registered practitioner
(if any).
73
S. 42V
inserted by
No. 3/2006
s. 9.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42V
(3) Despite subsection (2)(b), a registered practitioner
who is involved in the relevant research project
cannot apply to the Tribunal in relation to a
refusal of the person responsible for a patient to
consent under section 42S to the carrying out of a
medical research procedure on the patient.
(4) If an application is made under this section, the
patient is a party to the proceeding.
(5) The Tribunal must give notice of an application,
of the hearing of the application and of any order
of the Tribunal in respect of the application to—
(a) the Public Advocate; and
(b) any other person whom the Tribunal
considers has a special interest in the affairs
of the patient.
(6) On an application under this section, the
Tribunal—
(a) may make an order that for matters relating
to medical research procedures, either
generally or of a particular kind, a person
specified in the order is to be the person
responsible;
(b) may appoint a person as guardian of the
patient generally or for matters relating to
medical research procedures;
(c) may vary a guardianship order to make
provision for matters relating to medical
research procedures;
(d) may revoke, suspend or vary an instrument
appointing a person as the enduring guardian
to the extent that the instrument relates to
medical research procedures;
(e) may make an order that any proposed
medical research procedure is or is not
contrary to the best interests of the patient;
74
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42W
(f) may make any orders or give any directions
it considers necessary to resolve any conflict
between persons relating to the best interests
of a patient;
(g) may make a declaration as to the validity or
effect of any decision relating to medical
research procedures;
(h) may give an advisory opinion in relation to
the best interests of a patient;
(i) may make any other orders it considers to be
in the best interests of the patient.
42W Person responsible may seek advice
(1) The person responsible for a patient may apply to
the Tribunal for directions or an advisory opinion
on any matter or question relating to the scope or
exercise of his or her authority to consent to a
medical research procedure on behalf of the
patient.
(2) The Tribunal must give notice to any person
whom the Tribunal considers has a special interest
in the affairs of the patient of the application, of
the hearing of the application and of any order,
directions or advisory opinion of the Tribunal in
respect of the application.
(3) The Tribunal may—
(a) give any directions or advisory opinion it
considers necessary;
(b) make any order it considers necessary.
(4) The Tribunal of its own motion may direct, or
give an advisory opinion to, the person
responsible for a patient in respect of any matter.
75
S. 42W
inserted by
No. 3/2006
s. 9.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42X
(5) An action does not lie against the person
responsible for a patient on account of an act or
thing done or omitted to be done by that person in
accordance with any order, directions or advisory
opinion of the Tribunal made or given under this
section unless in representing the facts to the
Tribunal that person has been guilty of fraud,
wilful concealment or misrepresentation.
S. 42X
inserted by
No. 3/2006
s. 9.
42X Guidelines for medical research procedures
The Tribunal may—
(a) in consultation with the Public Advocate and
the Secretary to the Department of Justice;
and
(b) with the approval of the Governor in
Council—
issue and make available to members of the public
guidelines to assist the person responsible for a
patient in determining whether or not to consent to
medical research procedures in respect of the
patient.
S. 42Y
inserted by
No. 3/2006
s. 9.
42Y Offences
(1) Subject to section 42A, a registered practitioner
must not carry out, or supervise the carrying out
of, a medical research procedure on a patient
unless—
(a) the carrying out of the procedure is allowed
by section 42R and either the person
responsible for the patient has given consent
under section 42S or the procedure is
authorised under section 42T; or
(b) the carrying out of the procedure is otherwise
authorised by law.
Penalty: Imprisonment for 2 years or
240 penalty units or both.
76
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42Z
(2) A registered practitioner must not sign a
certificate under section 42T(3) or (6) that the
practitioner knows to be false.
Penalty: 120 penalty units.
(3) A registered practitioner must not carry out, or
supervise the carrying out of, a medical research
procedure on a patient unless the relevant research
project has been approved by the relevant human
research ethics committee.
Penalty: 240 penalty units.
42Z Protection of registered practitioner
(1) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of, a
medical research procedure on a patient in
accordance with this Division in reliance on—
(a) a consent given by another person whom the
registered practitioner believed on
reasonable grounds was authorised to give
such consent; or
(b) a purported consent given by another person
whom the registered practitioner believed on
reasonable grounds was authorised to give
such consent but was not so authorised—
is not—
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
(e) liable in any civil proceedings for assault or
battery; or
(f) guilty of an offence against section 42Y(1).
77
S. 42Z
inserted by
No. 3/2006
s. 9.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 4A—Medical and Other Treatment
s. 42Z
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of, a
medical research procedure on a patient in
accordance with this Division without the consent
of another person and in the belief on reasonable
grounds that the requirements of this Division
have been complied with is not—
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for assault or
battery; or
(d) guilty of an offence against section 42Y(1).
(3) Nothing in this section affects any duty of care
owed by a registered practitioner to a patient.
_______________
78
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 43
PART 5—ADMINISTRATION ORDERS
Division 1—Application for administration order
43 Application for administration order
(1) Any person may apply to the Tribunal for an order
appointing an administrator in respect of the estate
of a person with a disability who has attained the
age of 18 years or to take effect upon the person
attaining the age of 18 years.
S. 43(1)
amended by
No. 52/1998
s. 125(1).
(2) Where a person with a disability who has attained
the age of 18 years does not reside in Victoria but
has an estate the whole or part of which is in
Victoria, any person may apply to the Tribunal for
an order appointing an administrator in respect of
so much of the estate as is in Victoria.
S. 43(2)
amended by
No. 52/1998
s. 125(1).
(3) In addition to any other parties, the following are
parties to a proceeding on an application under
subsection (1)—
S. 43(3)
substituted by
No. 52/1998
s. 125(2).
(a) the person in respect of whom the
application is made; and
(b) the person proposed as administrator.
*
*
*
*
*
44 Who is entitled to notice of an application?
Each of the following is entitled to notice of the
making of an application for an order appointing
an administrator, notice of the hearing of the
application and notice of any order made by the
Tribunal in respect of the application—
(a) the nearest relative available of the person in
respect of whom the application is made;
79
S. 43(4)
repealed by
No. 52/1998
s. 125(3).
S. 44
amended by
Nos 55/1987
s. 57(2)(Sch. 4
items 4, 5),
74/1987 s. 8,
33/1989
ss 4(b), 5(3),
substituted by
No. 52/1998
s. 126.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 45
(b) the primary carer (if any) of the person in
respect of whom the application is made;
(c) the Public Advocate;
(d) any guardian of the person in respect of
whom the application is made;
(e) any person who has advised the Tribunal of
an interest in the person in respect of whom
the application is made or in his or her estate.
S. 45
amended by
No. 52/1998
s. 127(1)(a).
45 Date for hearing
The Tribunal must commence to hear an
application under section 43 within 30 days after
the day on which the application is received by the
Tribunal.
Division 2—Appointment of administrator
46 Appointment of administrator
S. 46(1)
amended by
No. 52/1998
s. 127(1)(a).
(1) If the Tribunal is satisfied that—
(a) the person in respect of whom an application
for an order appointing an administrator is
made—
(i) is a person with a disability; and
(ii) is unable to make reasonable judgments
in respect of the matters relating to all
or any part of her or his estate by
reason of the disability; and
(iii) is in need of an administrator of her or
his estate; and
S. 46(1)(b)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 6),
45/1994
s. 33(1),
40/1999
s. 24(a).
(b) in the case of an application in respect of a
person who does not reside in Victoria, State
Trustees has not been authorised under
section 12 of the State Trustee (State
Owned Company) Act 1994 to collect,
manage, sell or otherwise dispose of or
administer any property in Victoria which
80
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 47
forms part of the estate of the person in
respect of whom the application is made—
the Tribunal may make an order appointing an
administrator of that person's estate.
(2) In determining whether or not a person is in need
of an administrator of her or his estate, the
Tribunal must consider—
(a) whether the needs of the person in respect of
whom the application is made could be met
by other means less restrictive of the person's
freedom of decision and action; and
S. 46(2)
amended by
No. 52/1998
s. 127(1)(a),
substituted by
No. 3/2006
s. 17(1).
(b) the wishes of the person in respect of whom
the application is made, so far as they can be
ascertained.
(3) The Tribunal cannot make an order under
subsection (1) unless it is satisfied that the order
would be in the best interests of the person in
respect of whom the application is made.
S. 46(3)
amended by
No. 52/1998
s. 127(1)(a).
(4) Where the Tribunal makes an order appointing an
administrator of a person's estate, the order made
must be that which is the least restrictive of that
person's freedom of decision and action as is
possible in the circumstances.
S. 46(4)
amended by
No. 52/1998
s. 127(1)(a).
47 Persons eligible as administrators
(1) The Tribunal may appoint as an administrator of
the estate of a proposed represented person—
*
*
*
81
*
*
S. 47(1)
amended by
No. 52/1998
s. 127(1)(a).
S. 47(1)(a)
amended by
No. 55/1987
s. 57(2)(Sch. 4
item 7),
repealed by
No. 40/1999
s. 15(1)(a).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 47
S. 47(1)(b)
repealed by
No. 40/1999
s. 15(1)(a).
S. 47(1)(c)
amended by
Nos 52/1998
s. 127(1)(a),
40/1999
s. 15(1)(b).
*
*
*
*
*
(c) any person who consents to act as
administrator if the Tribunal is satisfied
that—
(i) the person will act in the best interests
of the proposed represented person; and
(ii) the person is not in a position where the
person's interests conflict or may
conflict with the interests of the
proposed represented person; and
(iii) the person is a suitable person to act as
the administrator of the estate of the
proposed represented person; and
(iv) the person has sufficient expertise to
administer the estate or there is a
special relationship or other special
reason why that person should be
appointed as administrator.
S. 47(2)
amended by
No. 52/1998
s. 127(1)(a).
(2) In determining whether a person is suitable to act
as the administrator of the estate of a proposed
represented person, the Tribunal must take into
account—
S. 47(2)(a)
amended by
No. 3/2006
s. 17(2).
(a) the wishes of the proposed represented
person, so far as they can be ascertained; and
S. 47(2)(b)
amended by
No. 40/1999
s. 15(2).
(b) the compatibility of the person proposed as
administrator with the proposed represented
person and with the guardian (if any) of the
proposed represented person; and
82
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 47
(c) whether the person was a member of the
Tribunal as constituted for a proceeding
under this Act.
S. 47(2)(c)
inserted by
No. 40/1999
s. 15(2).
(2A) The Tribunal may appoint a person who was at
any time a member of the Tribunal as constituted
for a proceeding under this Act only if the
Tribunal considers that in the circumstances it is
appropriate for the person to act as an
administrator.
S. 47(2A)
inserted by
No. 40/1999
s. 15(3).
(3) Where a parent or nearest relative of the proposed
represented person is proposed as the
administrator, that person is not by virtue only of
the fact that that person is a parent or nearest
relative to be taken to be in a position where the
person's interests conflict or may conflict with
those of the proposed represented person.
(4) If the Tribunal makes an order—
(a) appointing State Trustees as administrator of
the estate of a proposed represented person;
and
(b) specifying that the administrator is to have
powers and duties which are more limited
than those referred to in Division 3A—
the Tribunal must give State Trustees a copy of
the order as soon as practicable after it is made.
*
*
*
83
*
*
S. 47(4)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
items 8–10),
45/1994
s. 33(2),
52/1998
s. 127(1)(a),
40/1999
s. 15(4)(a)(b),
substituted by
No. 41/2002
s. 20.
S. 47(5)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 11),
52/1998
s. 127(1)(a),
repealed by
No. 40/1999
s. 15(5).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 47A
S. 47A
inserted by
No. 40/1999
s. 16.
47A Remuneration of professional administrator
(1) An administrator other than an administrator who
carries on a business of, or including, the
administration of estates is not entitled to receive
any fee, remuneration or other reward from the
estate of a represented person for acting as
administrator unless the Tribunal otherwise
specifies in the administration order.
(2) The remuneration to which an administrator who
carries on a business of, or including, the
administration of estates is entitled is to be
approved by the Tribunal.
S. 47A(3)
inserted by
No. 17/2010
s. 19.
(3) Despite subsection (2), the remuneration approved
by the Tribunal in respect of a licensed trustee
company must not exceed the limit on fees that
may be charged by a licensed trustee company
under Chapter 5D of the Corporations Act.
S. 47A(4)
inserted by
No. 17/2010
s. 19.
(4) For the purposes of this section—
S. 47B
inserted by
No. 3/2006
s. 18.
licensed trustee company has the same meaning
as in section 601RAA of the Corporations
Act.
47B Payment of costs and expenses to administrator or
former administrator from estate
(1) If, in any proceeding, a court or tribunal orders
that an administrator pay any costs of the
proceeding, the court or tribunal may order that
the administrator pay, or be reimbursed for, all or
part of those costs from the estate administered by
the administrator.
(2) In any proceeding, a court or tribunal may order
that an administrator be reimbursed for all or part
of the administrator's costs of the proceeding from
the estate administered by the administrator.
84
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 48
(3) A court or tribunal may order that the costs
incurred in administering an estate by a person
appointed as an administrator (including the costs
of any proceeding) may be paid out of, or
reimbursed from, the estate, whether or not the
appointment has been revoked or quashed.
(4) An order referred to in subsection (3) may be
made on an application under section 55 or
otherwise, and for that purpose, a reference in
section 55 to an administrator is taken to include a
reference to a person whose appointment as an
administrator has been revoked or quashed.
Division 3—Powers and duties of administrator
48 Power of administrator
(1) An administrator has the powers and duties
conferred by this Division and such of the powers
and duties referred to in Division 3A as the
Tribunal may specify in the order.
*
*
*
*
*
(3) Where a decision is made, action taken, consent
given or thing done by an administrator under an
order made by the Tribunal the decision, action,
consent or thing has effect as if it had been made,
taken, given or done by the represented person
and the represented person had the legal capacity
to do so.
85
S. 48(1)
amended by
No. 55/1987
s. 57(2)(Sch. 4
item 12),
substituted by
No. 45/1994
s. 34,
amended by
No. 52/1998
s. 127(1)(b)(i).
S. 48(2)
repealed by
No. 52/1998
s. 127(1)(b)(ii).
S. 48(3)
amended by
No. 52/1998
s. 127(1)(b)(i).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 49
(4) Upon the death of a represented person any order
appointing an administrator of that person's estate
under this Act lapses and the law relating to the
administration of a deceased person's estate
applies accordingly.
49 Exercise of power by administrator
(1) An administrator must act in the best interests of
the represented person.
(2) Without limiting subsection (1) an administrator
acts in the best interests of the represented person
if the administrator acts as far as possible—
(a) in such a way as to encourage and assist the
represented person to become capable of
administering the estate; and
(b) in consultation with the represented person,
taking into account as far as possible the
wishes of the represented person.
50 Ancillary powers of administrator
(1) An administrator may on behalf of a represented
person sign and do all such things as are necessary
to give effect to any power or duty vested in the
administrator.
(2) This Act does not confer on an administrator the
power to execute a will in the name of a
represented person.
S. 50A
inserted by
No. 41/2002
s. 21.
50A Power to make gifts
(1) An administrator may make a gift of the
represented person's property only if—
(a) the gift's value is not more than what is
reasonable in all the circumstances and, in
particular, the represented person's financial
circumstances; and
86
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 51
(b) the gift is—
(i) to a relative or close friend of the
represented person and is of a seasonal
nature or for a special event (including,
for example, a birth or marriage); or
(ii) a type of donation that the represented
person made when he or she had the
capacity to do so or might reasonably
be expected to make.
(2) The administrator or a charity with which the
administrator has a connection is not precluded
from receiving such a gift.
(3) The administrator must notify (in writing) the
Tribunal if the value of the gift, or total value of
the gifts, of the represented person's property to
the administrator, or a charity with which the
administrator has a connection, is $100 or more.
51 Powers of investment
(1) Except as provided in section 53 or any order of
the Tribunal, an administrator other than State
Trustees in respect of any part of the estate of the
represented person of which the administrator is
the administrator—
(a) may for such period as the administrator
thinks fit allow any part of the estate to
remain invested in the manner in which it
has been invested by the represented person;
and
(b) may in the case of money deposited in an
authorised deposit-taking institution within
the meaning of the Banking Act 1959 of the
Commonwealth re-deposit it after it becomes
payable; and
87
S. 51(1)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 13),
45/1994
s. 36(1),
52/1998
s. 127(1)(c)(i),
40/1999
s. 24(a).
S. 51(1)(b)
amended by
No. 11/2001
s. 3(Sch.
item 33).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 52
(c) has and may exercise in relation to any part
of the estate the same powers as the
administrator would have if the administrator
were a trustee of that part of the estate under
the Trustee Act 1958.
S. 51(1)(c)
amended by
No. 104/1995
s. 6(Sch. 1
item 11(a)(i)).
S. 51(2)
repealed by
No. 104/1995
s. 6(Sch. 1
item 11(a)(ii)).
*
*
*
*
*
S. 51(3)
repealed by
No. 52/1998
s. 127(1)(c)(ii).
*
*
*
*
*
52 Restriction on powers of represented person to enter
into contracts etc.
S. 52(1)
amended by
No. 52/1998
s. 127(1)(d).
(1) Where the Tribunal has made an administration
order the represented person whilst a represented
person or until the Tribunal revokes that order is,
to the extent that the represented person's estate is
under the control of the administrator, deemed
incapable of dealing with, transferring, alienating
or charging her or his money or property or any
part thereof or becoming liable under any contract
without the order of the Tribunal or the written
consent of the administrator.
(2) Every dealing, transfer, alienation or charge by
any represented person in respect of any part of
the estate which is under the control of the
administrator is void and of no effect, and the
money or property the subject of the dealing,
transfer, alienation or charge is recoverable by the
administrator in any court of competent
jurisdiction.
(3) This section does not render invalid any dealing,
transfer, alienation or charge by any represented
person made for adequate consideration with or to
or in favour of any other person who proves that
88
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 53
she or he acted in good faith and did not know or
could not reasonably have known that the person
was a represented person.
(4) For the purpose of this section the acceptance of
payment of the whole or any part of a debt is
deemed to be a dealing with property.
53 Interest of represented person in property not to be
altered by sale or other disposition of property
(1) A represented person and her or his heirs,
executors, administrators, next of kin, devisees,
legatees and assigns have the same interest in any
money or other property arising from or received
in respect of any sale, mortgage, exchange,
partition or other disposition under the powers
given to an administrator by an order of the
Tribunal which have not been applied under those
powers as she, he or they would have had in the
property the subject of the sale, mortgage,
exchange, partition or disposition if no sale,
mortgage, exchange, partition or disposition had
been made.
S. 53(1)
amended by
No. 52/1998
s. 127(1)(d).
(2) For the purposes of this section money arising
from the compulsory acquisition or purchase
under any Act of property of a represented person
is deemed to be money arising from the sale of
that property under the powers given to an
administrator by an order of the Tribunal.
S. 53(2)
amended by
No. 52/1998
s. 127(1)(d).
(3) An administrator who receives money or other
property under this section must keep a separate
account and record of the money or other
property.
(4) Money received by an administrator under this
section may be invested in any manner in which
trust funds may be invested under the Trustee
Act 1958.
89
S. 53(4)
amended by
No. 104/1995
s. 6(Sch. 1
item 11(b)).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 54
(5) In this section and section 56 next of kin in
relation to a represented person means any person
who would be entitled to the property of the
represented person or to any share thereof under
any law for the distribution of the property of
intestates if the represented person had died
intestate.
S. 54
amended by
No. 52/1998
s. 127(1)(d).
54 Tribunal may open will
The Tribunal may either before or after the death
of a represented person open and read any paper
or writing which is purported or alleged to be the
will of the represented person.
55 Administrator may seek advice
S. 55(1)
amended by
No. 52/1998
s. 127(1)(e)(i).
(1) An administrator may apply for the advice of the
Tribunal upon any matter relating to the scope of
the administration order or the exercise of any
power by the administrator under the
administration order.
S. 55(2)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 14),
52/1998
s. 127(1)(e)(i),
40/1999
s. 24(a).
(2) Without limiting subsection (1), the jurisdiction of
the Tribunal includes jurisdiction in the case of an
administration by State Trustees to approve, order
or advise the commencement of proceedings by
State Trustees acting in one capacity or on behalf
of one represented person against State Trustees
acting in another capacity or on behalf of another
represented person.
S. 55(3)
amended by
No. 52/1998
s. 127(1)(e)(i),
repealed by
No. 52/1998
s. 127(1)(e)(ii).
S. 55(4)
amended by
No. 52/1998
s. 127(1)(e)(i).
*
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*
*
*
(4) The Tribunal may—
(a) approve or disapprove of any act proposed to
be done by the administrator; and
90
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 56
(b) give such advice as it considers appropriate;
and
(c) make any order it considers necessary.
(4A) The Tribunal may on its own initiative direct, or
give an advisory opinion to, an administrator
concerning any matter.
(5) An action does not lie against an administrator on
account of an act or thing done or omitted by the
administrator under any order or on the advice of
the Tribunal made or given under this section
unless in representing the facts to the Tribunal the
administrator has been guilty of fraud, wilful
concealment or misrepresentation.
S. 55(4A)
inserted by
No. 41/2002
s. 22.
S. 55(5)
amended by
No. 52/1998
s. 127(1)(e)(i).
56 Application to the Tribunal by a creditor etc.
(1) Any person interested as a creditor, beneficiary,
next of kin, guardian, nearest relative, primary
carer or the Public Advocate or otherwise in any
estate administered by an administrator may apply
to the Tribunal upon any matter arising out of the
administration of the estate by the administrator.
*
*
*
*
*
(3) The Tribunal may make such order in relation to
the application as the circumstances of the case
may require.
S. 56(1)
amended by
No. 52/1998
s. 127(1)(f)(i).
S. 56(2)
repealed by
No. 52/1998
s. 127(1)(f)(ii).
S. 56(3)
amended by
No. 52/1998
s. 127(1)(f)(i).
57 Power to administrator to act until notice of
discharge etc. received
(1) Where the Tribunal knows that a person has
ceased to be a represented person, the Tribunal
must without delay give notice of that fact to the
administrator.
91
S. 57(1)
amended by
No. 52/1998
s. 127(1)(g).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58
S. 57(2)
amended by
No. 52/1998
s. 127(1)(g).
S. 57(3)
amended by
No. 52/1998
s. 127(1)(g).
(2) Until the administrator learns that a person has
ceased to be a represented person or has died an
administrator may exercise all or any of the
powers given to the administrator by order of the
Tribunal with respect to the estate of the
represented person.
(3) Upon notice being given under subsection (1) the
represented person or the represented person's
legal personal representative (as the case may be)
is bound by and may take advantage of any act
done on behalf of the represented person by the
administrator within the powers conferred on the
administrator by the Tribunal as if it had been
done by the represented person and the
represented person had the legal capacity to do so.
58 Accounts
S. 58(1)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 15),
52/1998
s. 127(1)(h),
substituted by
No. 40/1999
s. 17(1).
(1) The Tribunal may, at the time that it appoints an
administrator under section 46 or such later time
as the Tribunal determines, appoint a person to
examine or audit the accounts of the estate of a
represented person for a fee approved by the
Tribunal and paid from that estate.
S. 58(2)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 16),
52/1998
s. 127(1)(h),
substituted by
No. 40/1999
s. 17(1).
(2) Unless the Tribunal otherwise directs, an
administrator must lodge—
(a) if the Tribunal has appointed a person under
subsection (1) to examine or audit accounts,
with that person; or
(b) in any other case, with the Tribunal—
on, or as soon as practicable after, the anniversary
of the appointment of the administrator in each
year, accounts of the administration of the estate
of a represented person providing a full and true
account of the assets and liabilities of that estate
and all receipts and disbursements in respect of
that estate.
92
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58
(2A) The Tribunal may require an administrator to
lodge accounts at a time other than a time
specified in subsection (2).
S. 58(2A)
inserted by
No. 40/1999
s. 17(1).
(2B) A person appointed under subsection (1) to
examine or audit accounts must lodge with the
Tribunal a report in relation to the accounts
examined or audited.
S. 58(2B)
inserted by
No. 40/1999
s. 17(1).
(2C) A report under subsection (2B) may recommend
the disallowance of any item in the accounts.
S. 58(2C)
inserted by
No. 40/1999
s. 17(1).
(3) Where the Tribunal receives a report under
subsection (2C) the Tribunal cannot make an
order disallowing an item if the Tribunal is
satisfied that the administrator acted in good faith
and with reasonable care in the exercise of powers
conferred on the administrator.
S. 58(3)
amended by
Nos 52/1998
s. 127(1)(h),
40/1999
s. 17(2).
(4) Where any item is disallowed by the Tribunal the
administrator is liable for the amount of the item
disallowed.
S. 58(4)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
items 17, 18),
52/1998
s. 127(1)(h),
40/1999
s. 17(3).
(5) An administrator must, in respect of each estate
administered by the administrator, pay to a person
appointed under subsection (1) to examine or
audit accounts an amount certified by that person
as being the reasonable cost of examining or
auditing the accounts.
S. 58(5)
amended by
No. 55/1987
s. 57(2)(Sch. 4
items 19, 20),
substituted by
No. 40/1999
s. 17(4).
(6) The Tribunal may upon an application by the
administrator and with the consent of the person
appointed under subsection (1) to examine or
audit accounts waive payment of the whole or part
of the amount required to be paid under
subsection (5).
S. 58(6)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 21),
52/1998
s. 127(1)(h),
40/1999
s. 17(5).
93
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58AA
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
S. 58(9A)
inserted by
No. 74/1987
s. 9,
amended by
No. 52/1998
s. 127(1)(j)
(i)(ii),
repealed by
No. 41/2002
s. 23.
*
*
*
*
*
S. 58(10)
repealed by
No. 52/1998
s. 127(1)(k).
*
*
*
*
*
S. 58(7)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
items 22, 23),
33/1989
s. 7(1)(a),
52/1998
s. 127(1)(i),
repealed by
No. 41/2002
s. 23.
S. 58(8)
amended by
No. 55/1987
s. 57(2)(Sch. 4
item 24),
repealed by
No. 33/1989
s. 7(1)(b).
S. 58(9)
repealed by
No. 33/1989
s. 7(1)(b).
S. 58AA
inserted by
No. 41/2002
s. 24.
58AA Guardianship and Administration Fund
(1) There is to be established in the Public Account as
part of the Trust Fund an account to be known as
"The Guardianship and Administration Fund".
94
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58AB
(2) There is to be paid into the Fund—
(a) all fees prescribed under section 58A that are
paid in respect of estates which are the
subject of an administration order; and
(b) interest received from the investment of
money in the Fund.
(3) There is also to be paid into the Fund all money
standing to the credit of the Guardianship and
Administration Fund established by section 58(7)
immediately before that provision was repealed.
(4) Money standing to the credit of the Guardianship
and Administration Fund may be invested in any
manner in which trust funds may be invested
under the Trustee Act 1958.
(5) The Guardianship and Administration Fund is to
be used to meet the costs and expenses of the
Tribunal in respect of proceedings under this Act.
(6) After this section commences, a reference in
another Act or a statutory rule (within the
meaning of the Subordinate Legislation Act
1994) to the Guardianship and Administration
Fund established by section 58(7) of this Act is
taken to be a reference to the Fund established by
this section.
58AB Notice of death of represented person
An administrator must notify the Tribunal in
writing without delay if the represented person
dies.
58A Power to make regulations setting fees
(1) The Governor in Council may make regulations
for or with respect to prescribing annual fees to be
paid in respect of estates which are the subject of
an administration order.
95
S. 58AB
inserted by
No. 41/2002
s. 24.
S. 58A
inserted by
No. 33/1989
s. 7(2).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58B
(2) Regulations made under subsection (1)—
(a) may prescribe fees in respect of a particular
class or classes of estates only; and
(b) may prescribe different fees in respect of
different classes of estates; and
S. 58A(2)(c)
amended by
No. 52/1998
s. 127(1)(l).
(c) may authorise the Tribunal to waive fees in
particular cases or classes of cases.
(3) Before the Governor in Council may make
regulations under this section, the Minister must
advise the Governor in Council that the
Minister—
(a) has consulted the President and the Public
Advocate; and
S. 58A(3)(b)
amended by
No. 52/1998
s. 127(1)(l).
S. 58A(4)
repealed by
No. 40/1999
s. 24(b).
Pt 5 Div. 3A
(Heading and
ss 58B–58G)
inserted by
No. 45/1994
s. 35.
S. 58B
inserted by
No. 45/1994
s. 35.
(b) is of the opinion that the fees to be charged
in the proposed regulations will not result in
an amount of fees being collected in any year
that will exceed the amount required by the
Tribunal and the Public Advocate to fulfil
their estate administration functions under
this Act in that year.
*
*
*
*
*
Division 3A—Additional powers and duties of
administrators
58B Powers and duties in relation to represented persons
(1) Subject to and in accordance with this Act and the
administration order appointing an administrator
in each case—
96
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58B
(a) the administrator has the general care and
management of the estate of the represented
person; and
(b) it is the duty of the administrator to take
possession and care of, recover, collect,
preserve and administer the property and
estate of the represented person and
generally to manage the affairs of the
represented person and to exercise all rights
statutory or otherwise which the represented
person might exercise if the represented
person had legal capacity; and
(c) the administrator in the name and on behalf
of the represented person may generally do
all acts and exercise all powers with respect
to the estate as effectually and in the same
manner as the represented person could have
done if the represented person were not
under a legal disability.
(2) Without limiting subsection (1), an administrator
may in the name and on behalf of a represented
person—
(a) collect, receive and recover income of and
money due or which becomes due to and any
compensation or damages for injury to the
estate or person of the represented person;
and
(b) invest any money in any security in which
trustees may by law invest; and
(c) demise land at a rent and on conditions as the
administrator thinks fit for any term not
exceeding 5 years or, with the consent of the
Tribunal, for any longer term; and
97
S. 58B(2)(c)
amended by
No. 52/1998
s. 127(1)(m).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58B
(d) exercise to the extent and in the manner the
administrator thinks proper any power of
leasing vested in the represented person; and
(e) surrender any lease, accept any lease, accept
the surrender of any lease or renew any
lease; and
(f) bring land under the Transfer of Land Act
1958; and
(g) sell, exchange, partition or convert into
money any property; and
(h) mortgage or charge any property; and
(i) pay any debts and settle, adjust or
compromise any demand made by or against
the estate and discharge any encumbrance on
the estate; and
(j) carry on so far as appears desirable any
trade, profession or business which the
represented person carried on; and
(k) agree to any alteration of the conditions of
any partnership into which any represented
person has entered or to a dissolution and
distribution of the assets of the partnership;
and
(l) bring and defend actions and other legal
proceedings in the name of the represented
person; and
(m) execute and sign deeds, instruments and
other documents; and
(n) complete any contract for the performance of
which the represented person was liable, or
enter into any agreement terminating
liability; and
98
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58C
(o) pay any sum for the maintenance of the
represented person (and, in the event of his
or her death, for funeral expenses) and for
the maintenance of his or her spouse or
domestic partner or any child, parent or other
person dependent upon him or her and for
the maintenance and education of his or her
children as to the administrator seems
expedient and reasonable; and
S. 58B(2)(o)
amended by
No. 27/2001
s. 9(Sch. 7
item 2.5).
(p) do all matters necessary or incidental to the
performance of any of the above-mentioned
matters and apply any money from the estate
which it is necessary to apply for the
purposes of this Act.
(3) An administrator may if it seems to be expedient
and reasonable—
(a) pay or cause to be paid to the represented
person for the personal use of that person
any amount of money standing to the credit
of that person with the administrator; and
(b) give or cause to be given to the represented
person for the personal use of that person
any personal property which belongs to that
person and is under the control of the
administrator.
58C Exercise of certain powers
(1) If—
(a) a power is vested in a represented person for
that person's own benefit or the consent of a
represented person is necessary to the
exercise of a power; and
(b) the power or consent is in the nature of a
beneficial interest in the represented person;
and
99
S. 58C
inserted by
No. 45/1994
s. 35.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58C
(c) it appears to the administrator to be for the
benefit of the represented person that the
power should be exercised or the consent
given—
the administrator may on behalf and in the name
of the represented person exercise the power or
give the consent in any manner the administrator
thinks fit.
(2) If—
(a) a power is vested in a represented person in
the character of a trustee or guardian, or the
consent of a represented person to the
exercise of a power is necessary in the
character of a trustee or guardian or as a
check upon the undue exercise of the power;
and
(b) it appears to the administrator that the power
should be exercised or the consent given—
the administrator may on behalf and in the name
of the represented person exercise the power or
give the consent in any manner the administrator
thinks fit.
(3) The exercise by an administrator under this
section or the State Trust under section 33 of the
State Trust Corporation of Victoria Act 1987 as
in force immediately before the commencement of
section 24 of the State Trustees (State Owned
Company) Act 1994 or the Public Trustee under
section 52 of the Public Trustee Act 1958 as in
force immediately before the commencement of
section 33 of the State Trust Corporation of
Victoria Act 1987 of a power vested in a
represented person to appoint a new trustee is to
be taken to be the appointment of a new trustee
within the meaning of section 45 of the Trustee
Act 1958.
100
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58D
58D Action upon a person ceasing to be a represented
person
(1) If an administrator has received notice from the
Tribunal that a represented person has ceased to
be a represented person or has died, the
administrator must—
S. 58D
inserted by
No. 45/1994
s. 35.
S. 58D(1)
amended by
No. 52/1998
s. 127(1)(m).
(a) pay or cause to be paid to that person or to
that person's personal representative (as the
case requires) all money standing to his or
her credit with the administrator; and
(b) deliver to that person or to that person's
personal representative (as the case requires)
all property forming part of his or her estate
and any documents relating to the estate.
(2) Any payment made under subsection (1) is subject
to the satisfaction of any amount due to the
administrator and all costs, expenses and liabilities
incurred by the administrator in respect of the
administration of that person's estate.
(3) The receipt of a person who has ceased to be a
represented person or of that person's personal
representative is an absolute discharge to an
administrator despite any informality in the
discharge or certification.
58E Represented person entitled to inspection of
accounts
Any person who has ceased to be a represented
person or the personal representative of any
represented person is entitled, before or after
obtaining the restoration of all or any part of the
estate from an administrator—
(a) to examine and inspect or cause to be
examined and inspected by a legal
practitioner or other authorised agent all
101
S. 58E
inserted by
No. 45/1994
s. 35.
S. 58E(a)
amended by
No. 35/1996
s. 453(Sch. 1
item 37).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 58F
books, accounts, notices and other
documents in the custody of the
administrator relating to the estate and to
make or cause to be made copies or extracts;
and
S. 58E(b)
amended by
No. 35/1996
s. 453(Sch. 1
item 37).
(b) to have supplied to him or her or his or her
legal practitioner or other authorised agent
copies of or extracts from any book, account,
notice or document; and
S. 58E(c)
amended by
No. 35/1996
s. 453(Sch. 1
item 37).
(c) to have given to him or her or his or her legal
practitioner or other authorised agent
information respecting the estate as is
reasonably requested and can be given by the
administrator.
S. 58F
inserted by
No. 45/1994
s. 35.
58F Sale of personal effects if unclaimed within 2 years
from date of discharge
(1) All personal effects of any represented person in
the possession of an administrator which are not
claimed within 2 years after the date of ceasing to
be a represented person may after public notice be
sold by order of the administrator.
(2) The proceeds are to be paid into the Consolidated
Fund.
S. 58G
inserted by
No. 45/1994
s. 35.
58G Power to open will
An administrator may, either before or after the
death of a represented person, open and read
without order any paper or writing deposited with
the administrator and purporting or alleged to be
the will of the represented person.
102
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 59
Division 4—Temporary orders
59 Application for temporary order
(1) Any person may apply to the Tribunal for a
temporary order appointing an administrator of
the estate of a person in respect of whom an
application could be made under section 43.
S. 59(1)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 25),
52/1998
s. 127(1)(n),
40/1999
s. 18(1).
(2) An application may be made under subsection (1)
whether or not an application has been made to
the Tribunal under section 43.
S. 59(2)
amended by
No. 52/1998
s. 127(1)(n).
(3) Each person who would be entitled to notice
under section 44 of an application under
section 43 is entitled to notice of the making of an
application under this section, notice of the
hearing of the application and notice of any order
made by the Tribunal in respect of the application.
S. 59(3)
substituted by
No. 52/1998
s. 127(2).
*
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*
*
*
S. 59(4)
amended by
No. 74/1987
s. 7(a),
repealed by
No. 52/1998
s. 127(3)(a).
60 Temporary order
(1) If the Tribunal is satisfied that—
(a) the person in respect of whom an application
has been made under section 59—
(i) is a person with a disability; and
(ii) is unable to make reasonable judgments
in respect of the matters relating to all
or any part of her or his estate by
reason of the disability; and
(iii) is in need of an administrator of her or
his estate; and
103
S. 60(1)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 27),
52/1998
s. 127(3)(b)(i),
40/1999
s. 18(2)(b).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5—Administration Orders
s. 60
(b) in the case of an application in respect of a
person who does not reside in Victoria, State
Trustees has not been authorised under
section 12 of the State Trustees (State
Owned Company) Act 1994 to collect,
manage, sell or otherwise dispose of or
administer any property in Victoria which
forms part of the estate of the person in
respect of whom the application is made—
S. 60(1)(b)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 26),
45/1994
s. 33(1),
40/1999
s. 18(2)(a).
the Tribunal may make an order appointing any
person who may be appointed under section 47(1)
as an administrator of that person's estate.
S. 60(2)
substituted by
No. 40/1999
s. 18(3).
(2) A temporary order—
(a) remains in effect for such period not
exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further period not
exceeding 21 days.
S. 60(3)
amended by
Nos 52/1998
s. 127(3)(b)(i),
40/1999
s. 18(4).
S. 60(4)
repealed by
No. 52/1998
s. 127(3)(b)(ii).
(3) The Tribunal must hold a hearing to determine
whether an administrator should be appointed
under section 46 as soon as practicable after the
making of a temporary order but within 42 days of
making that order.
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104
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Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AA
PART 5A—ADMINISTRATION ORDERS IN RESPECT OF
THE ESTATE OF A MISSING PERSON
60AA Application for administration in respect of the
estate of a missing person
(1) Any person may apply to the Tribunal for an order
appointing an administrator in respect of the estate
of a missing person.
Pt 5A
(Heading and
ss 60AA–
60AJ)
inserted by
No. 64/2010
s. 29.
S. 60AA
inserted by
No. 64/2010
s. 29.
(2) In addition to any other parties, the person
proposed as administrator is a party to a
proceeding on an application under subsection (1).
60AB Appointment of administrator in respect of the
estate of a missing person
(1) If the Tribunal is satisfied that—
(a) the person in respect of whose estate an
application has been made under
section 60AA—
(i) is a missing person; and
(ii) usually resides in Victoria; and
(b) while the person is missing there is, or is
likely to be, a need for a decision in relation
to the person's financial matters or property;
and
(c) it is in the best interests of the missing
person for a person to be appointed to
administer their estate while they are
missing—
the Tribunal may make an order appointing an
administrator.
105
S. 60AB
inserted by
No. 64/2010
s. 29.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AB
Note
See section 49 as modified by section 60AI.
An administrator acts in the best interests of the
represented person by only taking actions necessary and
desirable for the payment of the missing person's debts,
the maintenance of the missing person's dependants and
the care and maintenance of the missing person's estate.
(2) A person is a missing person for the purpose of
making an order under subsection (1) if the
Tribunal is satisfied that—
(a) it is not known whether the person is alive;
and
(b) reasonable efforts have been made to find the
person; and
(c) for at least 90 days, the person has not
contacted—
(i) anyone who lives at the person's lastknown home address; or
(ii) any relative or friend of the person with
whom the person is likely to
communicate.
(3) An order may be made under this section in
respect of a person who is a missing person
whether before or after the commencement of
section 29 of the Justice Legislation Further
Amendment Act 2010.
(4) Subject to subsection (5), an administrator may be
appointed under subsection (1) to administer all or
a specified part of the estate of the missing person.
(5) The Tribunal cannot make an order under
subsection (1) in respect of the estate of a missing
person if the estate or any part of the estate of the
missing person is subject to—
(a) an order under section 24A of the
Administration and Probate Act 1958; or
106
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AC
(b) an application for an order under section 24A
of the Administration and Probate Act
1958.
Note
Section 24A of the Administration and Probate Act 1958
enables a trustee company to apply to the Supreme Court of
Victoria for an order authorising the trustee company to do
any act, matter or thing in relation to the property or affairs
of the owner of property in Victoria in circumstances where
among other things the owner cannot be found or it is not
known whether the owner is alive or dead.
60AC Administrator to notify Tribunal
An administrator must notify the Tribunal in
writing without delay when the administrator
becomes aware that—
S. 60AC
inserted by
No. 64/2010
s. 29.
(a) the represented person is alive (either in
Victoria or elsewhere); or
(b) the represented person has died.
60AD Order to remove an administrator
(1) The Tribunal may, by order, remove an
administrator—
(a) on application by the represented person; or
(b) if satisfied, on application by the
administrator or any other person, that—
(i) the represented person is alive; or
(ii) the represented person is dead; or
(iii) the represented person may be
presumed to be dead.
(2) The Tribunal must, by order, remove an
administrator—
(a) if the Supreme Court, on being satisfied of
the death of the represented person, whether
by direct evidence or on presumption of
death, has made a grant of probate of the will
107
S. 60AD
inserted by
No. 64/2010
s. 29.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AE
or administration of the estate of the
represented person under section 7 of the
Administration and Probate Act 1958; or
(b) if the registrar of probates, on being satisfied
of the death of the represented person,
whether by direct evidence or on
presumption of death, has made a grant of
probate of the will or administration of the
estate of the represented person under
section 12 of the Administration and
Probate Act 1958; or
(c) if the presumption of death has been
successfully invoked in relation to a
represented person for the purpose of any
other proceeding before a court in Victoria or
elsewhere in Australia; or
(d) if any part of the estate of the represented
person becomes subject to an order under
section 24A of the Administration and
Probate Act 1958.
S. 60AE
inserted by
No. 64/2010
s. 29.
60AE Duration of order
(1) Subject to section 60AD, an order under
section 60AB continues in effect for the period
not exceeding 2 years as is specified in the order.
(2) An order under section 60AB may on the
application of the administrator be renewed once
for a further period not exceeding 2 years as is
specified in the order if the Tribunal is satisfied
that the matters specified in section 60AB
continue to apply.
(3) Nothing in this section prevents a person applying
for a new order in accordance with section 60AA
if the previous order has expired.
Note
A person may apply at any time for a reassessment of an
order under Part 6.
108
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AF
60AF Application for temporary order
(1) Any person may apply to the Tribunal for a
temporary order appointing an administrator in
respect of the estate of a missing person.
S. 60AF
inserted by
No. 64/2010
s. 29.
(2) An application may be made under subsection (1)
whether or not an application has been made to
the Tribunal under section 60AA.
(3) Each person who would be entitled to notice
under section 44 of an application under section
60AA is entitled to notice of the making of an
application under this section, notice of the
hearing of the application and notice of any order
made by the Tribunal in respect of the application.
60AG Temporary order
(1) If the Tribunal is satisfied that—
(a) the person in respect of whose estate an
application has been made under
section 60AF—
(i) is a missing person; and
(ii) usually resides in Victoria; and
(b) while the person is missing there is, or is
likely to be, a need for a decision in relation
to the person's financial matters or property;
and
(c) it is in the best interests of the missing
person for a person to be appointed to
administer their estate while they are
missing—
the Tribunal may make a temporary order
appointing any person who may be appointed
under section 47(1) as an administrator.
(2) A person is a missing person for the purpose of
making a temporary order under subsection (1) if
the Tribunal is satisfied that—
109
S. 60AG
inserted by
No. 64/2010
s. 29.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AG
(a) it is not known whether the person is alive;
and
(b) reasonable efforts have been made to find the
person; and
(c) for at least 90 days, the person has not
contacted—
(i) anyone who lives at the person's lastknown home address; or
(ii) any relative or friend of the person with
whom the person is likely to
communicate.
(3) An order may be made under this section in
respect of a person who is a missing person
whether before or after the commencement of
section 29 of the Justice Legislation Further
Amendment Act 2010.
(4) Subject to subsection (5), an administrator may be
appointed under subsection (1) to administer all or
a specified part of the estate of the missing person.
(5) The Tribunal cannot make a temporary order
under subsection (1) in respect of the estate of a
missing person if the estate or any part of the
estate of the missing person is subject to—
(a) an order under section 24A of the
Administration and Probate Act 1958; or
(b) an application for an order under section 24A
of the Administration and Probate Act
1958.
Note
Section 24A of the Administration and Probate Act 1958
enables a trustee company to apply to the Supreme Court of
Victoria for an order authorising the trustee company to do
any act, matter or thing in relation to the property or affairs
of the owner of property in Victoria in circumstances where
among other things the owner cannot be found or it is not
known whether the owner is alive or dead.
110
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AH
(6) A temporary order—
(a) remains in effect for such period not
exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further period not
exceeding 21 days.
(7) The Tribunal must hold a hearing to determine
whether an administrator should be appointed
under section 60AB as soon as practicable after
the making of a temporary order but within 42
days of making that order.
60AH Operation of Part
(1) This Part is not intended to exclude or limit the
operation of the Administration and Probate
Act 1958.
(2) A person who is a represented person only
because of the operation of this Part is only a
represented person for the purposes of—
(a) this Act and the regulations made under this
Act;
(b) the Victorian Civil and Administrative
Tribunal Act 1998 and the regulations and
rules made under that Act;
(c) the State Trustees (State Owned
Company) Act 1994 and the regulations
made under that Act—
to the extent that it is necessary in order to give
effect to this Part.
(3) A reference in any Act or regulation not specified
in subsection (2) to a represented person is taken
not to include a person who is a represented
person only because of the operation of this Part.
111
S. 60AH
inserted by
No. 64/2010
s. 29.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AI
S. 60AI
inserted by
No. 64/2010
s. 29.
60AI Application of Parts 5, 6 and 6A
(1) For the purposes of this Part, Part 5 applies with
the following modifications—
(a) as if sections 43, 46, 47(2)(b), 48(4), 50A,
52, 58AB, 58B(3), 58C, 59 and 60 were
repealed;
(b) as if in section 45 for "section 43" there were
substituted "section 60AA";
(c) as if in section 48(1) for "An" there were
substituted "Subject to subsection (1A), an";
(d) as if after section 48(1) there were inserted—
"(1A) Despite subsection (1), the Tribunal
must, in the order appointing the
administrator, specify the kinds of
decision the administrator may make
and the parts of the estate in relation to
which the power may be exercised.";
(e) as if for section 49(2) there were
substituted—
"(2) For the purposes of subsection (1), an
administrator acts in the best interests
of the represented person if the
administrator only takes any actions
that the administrator considers are
necessary or desirable for—
(a) the payment of the debts and
engagements of, and otherwise for
the benefit of, the represented
person;
(b) the maintenance and benefit of
dependants of the represented
person;
(c) the care and management of the
estate of the represented person.";
112
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AJ
(f) as if in sections 57(2) and 58D(1) the words
"or has died" were omitted;
(g) as if in section 58(1) for "section 46" there
were substituted "section 60AB";
(h) as if in section 58B(1)(b) for "had legal
capacity" there were substituted "were not
missing";
(i) as if in section 58B(1)(c) for "under a legal
disability" there were substituted "missing";
(j) as if for section 58B(2)(g) before "sell" there
were inserted "with the approval of the
Tribunal,";
(k) as if for section 58B(2)(o) there were
substituted—
"(o) pay any sum for the maintenance of the
spouse or domestic partner of the
represented person or any child, parent
or other person dependent on the
represented person and for the
maintenance and education of the
children of the represented person as to
the administrator seems expedient and
reasonable; and".
(2) For the purposes of this Part, Part 6 applies as if
sections 60A(6)(b) and 60A(6)(c) were repealed.
(3) For the purposes of this Part, Part 6A applies as if
sections 63A(a) and 63F were repealed.
60AJ Application of objects of this Act
For the purposes of this Part, section 4(2) applies
with the following modifications—
(a) as if paragraph (a) was repealed;
113
S. 60AJ
inserted by
No. 64/2010
s. 29.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 5A—Administration Orders in Respect of the Estate of a Missing Person
s. 60AJ
(b) as if in paragraphs (b) and (c) for "person
with a disability" there was substituted
"missing person".
__________________
114
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 60A
PART 6—REHEARINGS AND REASSESSMENT OF ORDERS
Division 1—Rehearings
60A Application for rehearing
(1) If the Tribunal makes an order in respect of an
application under this Act (other than an interim
order or a temporary order), a party or a person
entitled to notice of the application may apply to
the Tribunal for a rehearing of the application.
Pt 6 (Heading)
amended by
No. 78/2000
s. 6(d).
Pt 6 Div. 1
(Heading and
ss 60A–60D)
inserted by
No. 78/2000
s. 7.
S. 60A
inserted by
No. 78/2000
s. 7.
(2) A person entitled to notice of the application who
was not, or did not become, a party may apply for
a rehearing only if the Tribunal gives leave.
(3) Subsection (2) does not apply to the Public
Advocate.
(3A) If the Tribunal makes an order on a reassessment
under section 61 conducted on the Tribunal's own
initiative, a party or a person entitled to notice of
the reassessment may apply to the Tribunal for a
rehearing of the reassessment, if the Tribunal
gives leave.
(4) An application for a rehearing, or for leave to
apply for a rehearing, must be made within
28 days after the day of the order.
(5) If the Tribunal gives oral reasons for making an
order and a party then requests written reasons
under section 117 of the Victorian Civil and
Administrative Tribunal Act 1998, the day on
which the written reasons are given to the party is
deemed to be the day of the order for the purposes
of subsection (4).
115
S. 60A(3A)
inserted by
No. 3/2006
s. 19.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 60B
(6) A person cannot apply for a rehearing of—
(a) an application the order in respect of which
was made by the Tribunal constituted by the
President, whether with or without others; or
S. 60A(6)(b)
substituted by
No. 3/2006
s. 10(1).
(b) an application under section 42V (except an
application in respect of which an order is
made under section 42V(6)(b) appointing a
guardian generally); or
(c) an application under section 42I or 42N to
the Tribunal relating to medical or dental
treatment (except an application in respect of
which an order is made under section
42N(6)(b) appointing a guardian generally);
or
(d) an application for a rehearing or for leave to
apply for a rehearing.
S. 60B
inserted by
No. 78/2000
s. 7,
substituted by
No. 3/2006
s. 20.
60B Parties and notice
(1) In addition to any other parties, the following are
parties to a rehearing—
(a) in the case of the rehearing of an application
referred to in section 60A(1)—a party to the
proceeding on that application;
(b) in the case of the rehearing of a reassessment
referred to in section 60A(3A)—a party to
the reassessment.
(2) The following are entitled to notice of an
application for a rehearing—
(a) in the case of the rehearing of an application
referred to in section 60A(1)—a person who
was entitled to notice of the making of that
application;
116
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 60C
(b) in the case of the rehearing of a reassessment
referred to in section 60A(3A)—a person
who was entitled to notice of the
reassessment.
60C Rehearing
(1) On an application under section 60A, the Tribunal
must rehear the matter and, for that purpose, the
Tribunal has all the functions and powers that the
Tribunal had with respect to the matter at first
instance.
S. 60C
inserted by
No. 78/2000
s. 7.
(2) In determining a rehearing, the Tribunal may—
(a) affirm the order of the Tribunal at first
instance; or
(b) vary the order of the Tribunal at first
instance; or
(c) set aside the order of the Tribunal at first
instance and make another order in
substitution for it.
60D Effect of first instance order pending rehearing
(1) Subject to subsection (2), the making of an
application for a rehearing does not affect the
operation of any order to which the application
relates or prevent the taking of action to enforce
the order.
(2) The Tribunal may make an order staying the
operation of an order pending the determination of
the rehearing of the application to which the order
relates.
117
S. 60D
inserted by
No. 78/2000
s. 7.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 61
Pt 6 Div. 2
(Heading)
inserted by
No. 78/2000
s. 8(a).
S. 61
substituted by
No. 52/1998
s. 128.
S. 61(1)
amended by
No. 78/2000
s. 8(b).
S. 61(1)(b)
substituted by
No. 41/2002
s. 25(1).
Division 2—Reassessment of orders
61 Reassessment
(1) The Tribunal must conduct a reassessment of a
guardianship order or an administration order—
(a) within 12 months after making the order,
unless the Tribunal orders otherwise; and
(b) in any case, at least once within each 3 year
period after making the order unless the
Tribunal orders otherwise.
S. 61(2)
amended by
Nos 40/1999
s. 19, 78/2000
s. 8(b).
(2) The Tribunal may at any time conduct a
reassessment of any order made by it under
this Act.
S. 61(3)
amended by
No. 78/2000
s. 8(b).
(3) A reassessment under this section may be
conducted—
(a) on the Tribunal's own initiative; or
(b) on the application any person.
S. 61(4)
amended by
No. 78/2000
s. 8(b).
(4) In addition to any other parties, the following are
parties to a reassessment—
(a) the represented person; and
(b) the guardian or administrator (as the case
may be).
S. 61(5)
inserted by
No. 41/2002
s. 25(2).
(5) The amendment to subsection (1)(b) made by
section 25 of the Guardianship and
Administration (Amendment) Act 2002 applies
to orders made before or after that amendment
commences.
118
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 62
62 Who is entitled to notice of a reassessment?
(1) Each of the following is entitled to notice of the
making of an application for a reassessment under
section 61, notice of the hearing of the
reassessment and notice of any order made by the
Tribunal in respect of the reassessment—
S. 62
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 28),
33/1989
ss 4(c), 5(4),
substituted by
No. 52/1998
s. 128.
S. 62(1)
amended by
No. 78/2000
s. 8(b).
(a) the nearest relative available of the
represented person in respect of whom the
application is made; and
(b) the primary carer (if any) of the represented
person in respect of whom the application is
made; and
(c) in the case of a reassessment of a
guardianship order—
(i) the Public Advocate; and
S. 62(1)(c)
amended by
No. 78/2000
s. 8(b).
(ii) any administrator of the estate of the
represented person; and
(d) in the case of a reassessment of an
administration order, any guardian of the
represented person.
(2) If the Tribunal conducts a reassessment on its own
initiative, the Tribunal must give notice of the
reassessment, at least 7 days before the proposed
day of the hearing, to the parties and to the
persons specified in subsection (1).
119
S. 62(1)(d)
amended by
No. 78/2000
s. 8(b).
S. 62(2)
amended by
No. 78/2000
s. 8(b).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 62
S. 62(2A)
inserted by
No. 41/2002
s. 26(1).
(2A) However, if the Tribunal conducts a reassessment
on its own initiative and does not propose to
amend, vary or replace the order—
(a) instead of giving notice under subsection (2),
the Tribunal may give notice to the parties
and the persons specified in subsection (1)
that the party or person has 14 days from the
date of the notice to request, in writing, a
hearing of the reassessment; and
(b) if—
(i) any of the parties or persons request a
hearing within that time, the Tribunal
must give at least 7 days' notice of the
hearing to each of the parties and
persons; or
(ii) none of the parties or persons request a
hearing within that time, the Tribunal is
not required to hold a hearing of the
reassessment.
S. 62(3)
amended by
Nos 78/2000
s. 8(b),
41/2002
s. 26(2).
(3) The Tribunal may, in a notice under subsection (2)
or (2A)(b)(i), advise that a person to whom the
notice is given (other than a party) is not required
to attend the hearing if that person does not have
any matters to raise with the Tribunal in relation
to the reassessment.
S. 62(4)
inserted by
No. 41/2002
s. 26(3).
(4) The amendments to this section made by
section 26 of the Guardianship and
Administration (Amendment) Act 2002 only
apply to applications for a reassessment made
after the amendments commence.
120
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6—Rehearings and Reassessment of Orders
s. 63
63 Order after reassessment
(1) Upon completing a reassessment the Tribunal may
by order amend, vary, continue or replace the
order subject to any conditions or requirements it
considers necessary or revoke the order.
*
*
*
_______________
121
*
*
S. 63(1)
amended by
Nos 52/1998
s. 129(1)(a)(i),
78/2000
s. 8(b).
S. 63(2)
repealed by
No. 52/1998
s. 129(1)(a)(ii).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6A—Interstate Orders
s. 63A
Pt 6A
(Heading and
ss 63A–63G)
inserted by
No. 40/1999
s. 20.
S. 63A
inserted by
No. 40/1999
s. 20.
PART 6A—INTERSTATE ORDERS
63A Application of Part
This Part applies to a guardianship order or an
administration order made under a corresponding
law of a participating State in respect of a person
who—
(a) resides in the participating State and
proposes entering Victoria; or
(b) has property situated in Victoria.
S. 63B
inserted by
No. 40/1999
s. 20.
63B Definitions
In this Part—
corresponding law means a law that, under an
Order in force under section 63C, is declared
to be a corresponding law for the purposes of
this Part;
determining body, in relation to a participating
State, means a court, tribunal, board or other
body that is authorised under a
corresponding law to make, revoke, amend
or vary a guardianship order or an
administration order;
interstate order means an order made under a
corresponding law of a participating State;
participating State means a State in which a
corresponding law is in force;
State includes Territory.
122
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6A—Interstate Orders
s. 63C
63C Corresponding laws and orders
(1) The Governor in Council on the recommendation
of the Minister, by Order published in the
Government Gazette, may declare that a law of
another State is a corresponding law for the
purposes of this Part.
S. 63C
inserted by
No. 40/1999
s. 20.
(2) An Order under subsection (1) in respect of a law
of another State may include a declaration that an
order under that law is substantially similar to a
guardianship order or an administration order for
the purposes of this Part.
63D Ministerial agreements
The Minister may make an agreement with a
Minister responsible for administering a
corresponding law about any matter in connection
with the administration of this Part or a
corresponding law.
63E Registration of interstate orders
(1) The Tribunal may register an interstate order on
the application of—
(a) a guardian or administrator of a represented
person in a participating State; or
(b) the Public Advocate.
(2) If the guardian in a participating State is a person
who holds an equivalent position to the Public
Advocate, the Tribunal may appoint the Public
Advocate as the guardian of the represented
person in this State if no other person fulfils the
requirements of section 23 for appointment as the
guardian of that person.
123
S. 63D
inserted by
No. 40/1999
s. 20.
S. 63E
inserted by
No. 40/1999
s. 20.
S. 63E(1)
substituted by
No. 41/2002
s. 27.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6A—Interstate Orders
s. 63F
(3) On registration of an interstate order, the Tribunal
must notify the determining body which made the
order that the order has been registered.
(4) An interstate order registered under this Part has
the same force and effect according to its terms as
a guardianship order or an administration order
made under this Act.
(5) A guardianship order or an administration order
made under this Act is not revoked in Victoria if
that order is registered in a participating State.
S. 63F
inserted by
No. 40/1999
s. 20.
63F Reassessment of interstate orders
S. 63F(1)
amended by
No. 78/2000
s. 8(c)(i)(ii).
(1) A registered interstate order may be reassessed by
the Tribunal in accordance with Division 2 of
Part 6.
S. 63F(2)
amended by
No. 78/2000
s. 8(d).
(2) The Tribunal may make any order that it is
authorised to make under Division 2 of Part 6 in
relation to an interstate order that has been
registered under this Part, including an order
appointing a new guardian or administrator.
(3) The Tribunal must notify the determining body
which made the interstate order as soon as
practicable after the Tribunal makes an order
under subsection (2).
(4) An order made by the Tribunal under subsection
(2) has no effect in the participating State in which
the interstate order was made.
(5) The revocation, amendment or variation of an
interstate order by a determining body after the
order is registered under this Part has no effect in
Victoria.
124
Guardianship and Administration Act 1986
No. 58 of 1986
Part 6A—Interstate Orders
s. 63G
63G Reciprocal arrangements under the State Trustees
(State Owned Company) Act 1994
Nothing in this Part affects the operation of
section 12 of the State Trustees (State Owned
Company) Act 1994.
_______________
125
S. 63G
inserted by
No. 40/1999
s. 20.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 66
PART 7—GENERAL PROVISIONS
S. 64
repealed by
No. 52/1998
s. 129(1)(b).
S. 65
repealed by
No. 110/1986
s. 140(2).
*
*
*
*
*
*
*
*
*
*
66 Matters before a Court
S. 66(1)
amended by
No. 52/1998
s. 129(1)(c).
(1) If in any civil proceedings before a Court the
Court considers that a party may need to have a
guardian or administrator or both appointed under
this Act, the Court may refer the issue to the
Tribunal for its determination.
S. 66(2)
substituted by
No. 52/1998
s. 129(2).
(2) If a Court refers an issue to the Tribunal under
subsection (1)—
(a) the referral is to be treated as if it were an
application to the Tribunal for the making of
a guardianship order or an administration
order (as the case requires); and
(b) the prothonotary (in the case of a referral by
the Supreme Court) or the principal registrar
of the Court (in any other case) is to be taken
to be the applicant.
(3) If in any civil proceedings before a Court it is
adjudged or ordered that money be paid to a
person with a disability (whether or not that
person is a party to a cause or matter) the
money—
(a) is to be paid into court; and
126
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 66
(b) unless the Court otherwise orders is to be
paid out to the administrator (if any) of the
estate of that person or State Trustees.
(4) If any money—
(a) is paid into court before or after the
commencement of this section; and
(b) the money is being held in court on behalf of
a person with a disability—
S. 66(3)(b)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 29),
40/1999
s. 24(a).
S. 66(4)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 30),
40/1999
s. 24(a).
the Court may by order direct that the money be
paid out to the administrator (if any) of the estate
of that person or State Trustees.
(5) Where the Court adjudges or orders that property
(whether real or personal) be delivered up or
transferred to a person with a disability (whether
or not that person is a party to a cause or matter),
the Court—
(a) may order that the property be delivered up
or transferred to the administrator (if any) of
the estate of that person or State Trustees;
and
S. 66(5)(a)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 31),
40/1999
s. 24(a).
(b) may give any directions for the service of the
order on that administrator or State Trustees
as it thinks fit.
S. 66(5)(b)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 31),
40/1999
s. 24(a).
127
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 66
S. 66(6)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 32),
40/1999
s. 24(a).
(6) If an order under subsection (5) is served on an
administrator or State Trustees, the administrator
or State Trustees must accept delivery or transfer
of the property to which the order relates and the
acceptance of the property is a sufficient discharge
to the person delivering or transferring the
property.
S. 66(7)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 33),
52/1998
s. 129(1)(c),
40/1999
s. 24(a).
(7) A copy of any order made under this section must
be given by the administrator or State Trustees (as
the case may be) to the Tribunal and the Public
Advocate.
S. 66(8)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 34),
40/1999
s. 24(a).
(8) An order of the Court under this section that
money be paid out to an administrator (if any) of
the estate of a person or State Trustees has effect
as if it were an administration order.
(9) In this section Court means—
(a) the Supreme Court; or
S. 66(9)(b)
amended by
No. 74/1987
s. 10.
(b) the County Court; or
S. 66(9)(c)
inserted by
No. 74/1987
s. 10,
substituted by
No. 57/1989
s. 3(Sch.
item 89(a)).
(c) the Magistrates' Court.
S. 66(10)(11)
repealed by
No. 57/1989
s. 3(Sch.
item 89(b)).
*
*
*
128
*
*
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 67
67 Effect of setting aside administration order on
previous actions of administrator
(1) An order of a court or tribunal (the setting aside
order) that sets aside, or has the effect of setting
aside, an administration order does not affect the
validity of anything done in accordance with the
administration order before the setting aside order
takes effect.
New s. 67
inserted by
No. 3/2006
s. 21.
(2) Subsection (1) is subject to any order to the
contrary by the court or tribunal making the
setting aside order.
*
*
*
*
*
Ss 67–69
repealed by
No. 52/1998
s. 129(3)(a).
*
*
*
S. 70(1)
repealed by
No. 52/1998
s. 129(3)(b).
70 Immunity from suit
*
*
(2) A person is not entitled to receive compensation
from the Crown, the Treasurer of Victoria or the
Minister in respect of any damage, loss or injury
sustained by that person by reason of an act or
omission of a guardian or an administrator under
this Act.
*
*
*
*
*
S. 70(3)
repealed by
No. 55/1987
s. 57(2)(Sch. 4
item 35).
*
*
*
*
*
S. 71
amended by
No. 33/1989
s. 6,
repealed by
No. 52/1998
s. 129(3)(c).
129
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 73
S. 72
substituted by
No. 33/1989
s. 5(5),
repealed by
No. 52/1998
s. 129(3)(c).
*
*
*
*
*
73 Judicial notice
All courts and persons acting judicially must take
judicial notice of—
S. 73(a)
repealed by
No. 52/1998
s. 129(3)(d).
*
*
*
*
*
(b) the signature of any person who is or has
been the Public Advocate or Acting Public
Advocate and of the fact that that person is
or was the Public Advocate or Acting Public
Advocate (as the case may be).
S. 74
repealed by
No. 52/1998
s. 129(3)(e).
*
*
*
*
*
Ss 75–78
repealed by
No. 31/1994
s. 4(Sch. 2
item 39).
*
*
*
*
*
*
*
*
*
79 Audit
S. 79(1)–(4)
repealed by
No. 31/1994
s. 4(Sch. 2
item 39).
S. 79(5)
amended by
No. 52/1998
s. 129(3)(f).
*
(5) The Tribunal or the Public Advocate may engage
a registered company auditor to carry out any
inspections and audits that the Tribunal or the
Public Advocate considers to be necessary.
130
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 80
80 General penalty
(1) A person who contravenes any provision of this
Act is guilty of an offence against this Act and
liable if no penalty is expressly provided to a
penalty of not more than 20 penalty units.
(2) Subsection (1) does not apply to a contravention
of section 42Q(2).
Note
S. 80
amended by
Nos 52/1998
s. 129(3)(g),
3/2006 s. 10(2)
(ILA s. 39B(1)).
S. 80(2)
inserted by
No. 3/2006
s. 10(2).
Section 42Y(3) creates an offence relating to the matters
covered in section 42Q(2).
81 Offences by bodies corporate
(1) Where a person charged with an offence against
this Act is a body corporate, any person who is
concerned or takes part in the management of that
body corporate may be charged with a like
offence.
(2) Where a body corporate is convicted of an offence
against this Act a person charged pursuant to this
section with the like offence may also be
convicted of that offence and is liable to the
penalty for that offence unless that person proves
that the act or omission constituting the offence
took place without that person's knowledge or
consent.
81A Supreme Court—Limitation of jurisdiction
It is the intention of sections 35E(4) and 42I(5) to
alter or vary section 85 of the Constitution
Act 1975.
S. 81A
inserted by
No. 40/1999
s. 21.
82 Regulations
(1) The Governor in Council may make regulations
for or with respect to—
*
*
*
131
*
*
S. 82(1)(a)(b)
repealed by
No. 52/1998
s. 129(3)(h).
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 82
(c) prescribing forms to be used for the purposes
of this Act; and
S. 82(1)(ca)
inserted by
No. 40/1999
s. 22.
(ca) prescribing any treatment—
(i) to be medical or dental treatment for
the purposes of this Act; or
(ii) not to be medical or dental treatment
for the purposes of this Act; or
(iii) to be a special procedure for the
purposes of Part 4A; and
S. 82(1)(cab)
inserted by
No. 3/2006
s. 10(3).
(cab) prescribing any procedure—
(i) to be a medical research procedure for
the purposes of this Act; or
(ii) not to be a medical research procedure
for the purposes of this Act; and
S. 82(1)(cac)
inserted by
No. 3/2006
s. 10(3).
S. 82(1)(cb)
inserted by
No. 40/1999
s. 22.
(cac) prescribing any matters to be taken into
account in determining whether a medical
research procedure would or would not be
contrary to the best interests of a person to
whom Part 4A applies; and
(cb) prescribing any matters to be taken into
account in determining whether a special
procedure or medical or dental treatment
would be in the best interests of a person to
whom Part 4A applies; and
(d) any matter or thing authorized or required to
be prescribed or necessary to be prescribed
for carrying this Act into effect.
(2) Regulations under this Act—
(a) may be of general or of specially limited
application; and
(b) may differ according to differences in time,
place or circumstance; and
132
Guardianship and Administration Act 1986
No. 58 of 1986
Part 7—General Provisions
s. 82
(c) may impose a penalty not exceeding
10 penalty units for any contravention of the
regulations.
_______________
133
Guardianship and Administration Act 1986
No. 58 of 1986
Part 8—Amendments to the Public Trustee Act 1958
s. 83
PART 8—AMENDMENTS TO THE PUBLIC TRUSTEE
ACT 1958
83 Principal Act
In this Part the Public Trustee Act 1958 is
referred to as the Principal Act.
S. 84
repealed by
No. 55/1987
s. 57(2)(Sch. 4
item 36).
*
*
*
*
*
85 Existing protected persons
(1) In this section—
S. 85(1) def. of
Principal Act
amended by
No. 55/1987
s. 57(2)(Sch. 4
item 37).
Principal Act means the Principal Act as in force
immediately before the commencement of
section 84 of this Act or section 58(1) of the
State Trust Corporation of Victoria Act
1987 whichever occurs first;
protected person means a protected person within
the meaning of the Principal Act or a person
in respect of whom an order has been made
under section 54L of the Principal Act.
(2) The Principal Act continues to apply to and in
respect of a protected person—
S. 85(2)(a)
amended by
No. 55/1987
s. 57(2)(Sch. 4
item 38).
(a) who was an infirm person within the
meaning of the Principal Act, until the State
Trust seals a certificate in or to the effect of
the Fifth Schedule of the Principal Act to the
effect that the person is not or has ceased to
be an infirm person; or
S. 85(2)(b)
amended by
No. 49/1988
s. 199.
(b) who was a patient within the meaning of the
Principal Act, until the person ceases to be a
patient within the meaning of the Mental
Health Act 1986; or
134
Guardianship and Administration Act 1986
No. 58 of 1986
Part 8—Amendments to the Public Trustee Act 1958
s. 85
(c) in respect of whom an order is in force under
section 54L of the Principal Act, until the
Tribunal has made a determination under this
section; or
S. 85(2)(c)
amended by
No. 52/1998
s. 129(3)(i)(i).
(d) who was a voluntary patient who had
authorized the Public Trustee in accordance
with section 48A of the Principal Act to
administer his or her estate, until the person
revokes the authority.
(3) The Tribunal must hold a hearing in respect of
every protected person to determine whether a
guardianship order or an administration order
should be made in respect of that protected person
or the estate of that protected person under this
Act.
S. 85(3)
amended by
No. 52/1998
s. 129(3)(i)(i).
(4) A protected person may apply to the Tribunal to
hold a hearing to determine whether a
guardianship order or an administration order
should be made in respect of that person or his or
her estate.
S. 85(4)
amended by
No. 52/1998
s. 129(3)(i)(i).
(5) The State Trust must provide such information
and assistance to the Tribunal in relation to
protected persons as is reasonably necessary to
enable the Tribunal to carry out its function under
this section.
S. 85(5)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 39),
52/1998
s. 129(3)(i)(i).
(6) Notwithstanding anything to the contrary in the
Public Trustee Act 1958 or in any order made
under that Act, upon the coming into effect of a
determination of the Tribunal under this section in
relation to a protected person, that person ceases
to be a protected person.
S. 85(6)
amended by
No. 52/1998
s. 129(3)(i)(i).
(7) The Tribunal must notify the State Trust of a
determination under this section without delay.
S. 85(7)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 40),
52/1998
s. 129(3)(i)(i).
135
Guardianship and Administration Act 1986
No. 58 of 1986
Part 8—Amendments to the Public Trustee Act 1958
s. 85
S. 85(8)
amended by
Nos 55/1987
s. 57(2)(Sch. 4
item 41),
52/1998
s. 129(3)(i)(i),
repealed by
No. 52/1998
s. 129(3)(i)(ii).
S. 86
repealed by
No. 55/1987
s. 57(2)(Sch. 4
item 42).
*
*
*
*
*
*
*
*
*
*
__________________
136
Guardianship and Administration Act 1986
No. 58 of 1986
Part 9—Transitional Provision
s. 86
PART 9—TRANSITIONAL PROVISION
Pt 9 (Heading
and s. 87)
repealed by
No. 45/1994
s. 36(2), new
Pt 9 (Heading
and s. 86)
inserted by
No. 40/1999
s. 23.
86 Enduring powers of attorney under the Instruments
Act 1958
(1) An enduring power of attorney under the
Instruments Act 1958 executed before the
commencement of section 12 of the
Guardianship and Administration
(Amendment) Act 1999 has effect on and after
that commencement as if this Act had not been
amended by that section.
*
*
*
*
*
86A Enduring guardians
An appointment of an enduring guardian made
under this Act that was in force immediately
before the commencement of sections 16 and 24
of the Guardianship and Administration
(Further Amendment) Act 2006 is not invalid on
or after that commencement only because—
(a) it was not executed in accordance with
section 35A as amended by section 16 of the
Guardianship and Administration
(Further Amendment) Act 2006; or
(b) it is not in the form of Form 1 in Schedule 4
as amended by section 24 of the
Guardianship and Administration
(Further Amendment) Act 2006.
137
New s. 86
inserted by
No. 40/1999
s. 23.
S. 86(2)
repealed by
No. 75/2003
s. 8.
S. 86A
inserted by
No. 3/2006
s. 22.
Guardianship and Administration Act 1986
No. 58 of 1986
Part 9—Transitional Provision
s. 87
New s. 87
inserted by
No. 78/2000
s. 9.
87 Rehearings and reassessments under Part 6
(1) Division 1 of Part 6 (rehearings) applies to any
application to the Tribunal that is made after the
commencement of section 7 of the Courts and
Tribunals Legislation (Miscellaneous
Amendments) Act 2000.
(2) Division 2 of Part 6 (reassessments) applies to an
order of the Tribunal whether made before or after
the commencement of section 8 of the Courts
and Tribunals Legislation (Miscellaneous
Amendments) Act 2000.
(3) A review under section 61 as in force immediately
before the commencement of section 8 of the
Courts and Tribunals Legislation
(Miscellaneous Amendments) Act 2000 that was
pending immediately before that commencement
may be completed under Division 2 of Part 6 as if
it were a reassessment.
S. 88
inserted by
No. 3/2006
s. 11.
88 Medical research procedures
(1) This Act, as in force immediately before the
commencement day, continues to apply on and
after that day in relation to any consent or
conferral of authority to consent to the carrying
out of a special procedure, being a procedure
carried out for the purposes of medical research,
given by the Tribunal that was in force
immediately before that day.
(2) Despite anything to the contrary in paragraph (e)
of section 42T(2), a registered practitioner is taken
to have complied with that paragraph if he or she
believes on reasonable grounds that the relevant
human research ethics committee has given
approval for the relevant research project before
the commencement day in the knowledge that a
patient may participate in the project without the
prior consent of the patient.
138
Guardianship and Administration Act 1986
No. 58 of 1986
Part 9—Transitional Provision
s. 88
(3) In this section—
commencement day means the day on which
section 11 of the Guardianship and
Administration (Further Amendment) Act
2006 comes into operation.
__________________
139
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 1
SCHEDULES
Sch. 1
amended by
Nos 42/1995
s. 224(Sch. 2
item 20.1(a)–
(c)), 46/1998
s. 7(Sch. 1),
repealed by
No. 52/1998
s. 129(3)(j).
*
*
*
*
*
Sch. 2
amended by
Nos 74/1987
s. 7(b)(c),
33/1989
s. 8(a)–(c),
repealed by
No. 52/1998
s. 129(3)(j).
*
*
*
*
*
140
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 3
SCHEDULE 3
PROVISIONS WITH RESPECT TO THE PUBLIC ADVOCATE
1 The Public Advocate
(1) The Public Advocate—
(a) is to be appointed by the Governor in
Council; and
(b) holds office for a period of 7 years; and
Sch. 3
cl. 1(1)(b)
amended by
No. 42/1995
s. 224(Sch. 2
item 20.2(a)).
(c) is entitled to be paid—
(i) such remuneration as is from time to
time fixed by the Governor in Council;
and
(ii) such travelling and other allowances as
are from time to time fixed by the
Governor in Council; and
(d) is not in respect of the office of Public
Advocate subject to the Public
Administration Act 2004 (other than Part 5
of that Act).
(2) The Public Advocate ceases to hold office—
(a) if the Public Advocate resigns in writing
signed by the Public Advocate and the
resignation is accepted by the Governor in
Council; or
141
Sch. 3
cl. 1(1)(d)
amended by
No. 46/1998
s. 7(Sch. 1),
substituted by
No. 108/2004
s. 117(1)
(Sch. 3
item 92.2).
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 3
(b) if the Public Advocate engages in any paid
employment outside the duties of the office
without the approval of the Governor in
Council; or
(c) if the Public Advocate is removed from
office under subclause (5).
(3) The Governor in Council may suspend or remove
the Public Advocate from office.
(4) The Minister must cause to be laid before each
House of Parliament a full statement of the
grounds of suspension of the Public Advocate
within 7 sitting days after the suspension if that
House is then sitting or, if that House is not then
sitting, within 7 sitting days after the next meeting
of that House.
(5) The Public Advocate may be removed from office
by the Governor in Council if each House of
Parliament, within 7 sitting days after the day
when the statement is laid before it, declares by
resolution that the Public Advocate ought to be
removed from office and, unless each House
within that period so declares, the Governor in
Council must remove the suspension and restore
the Public Advocate to office.
(6) If the Public Advocate—
(a) becomes bankrupt; or
(b) is convicted of an indictable offence or of an
offence which, if committed in Victoria,
would be an indictable offence; or
(c) becomes incapable of performing the duties
of the office of Public Advocate; or
(d) is removed from office under subclause (5)
or resigns under subclause (2)(a); or
142
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 3
*
*
*
*
*
Sch. 3
cl. 1(6)(e)
repealed by
No. 42/1995
s. 224(Sch. 2
item 20.2(b)).
(f) dies—
the office of the Public Advocate becomes vacant.
2 The Acting Public Advocate
(1) The Governor in Council may appoint an Acting
Public Advocate during the temporary absence or
the suspension of the Public Advocate and may at
any time revoke the appointment.
(1A) The Attorney-General may appoint a person
who—
(a) has previously been appointed as Acting
Public Advocate under subclause (1); and
Sch. 3
cl. 2(1A)
inserted by
No. 3/2006
s. 23.
(b) has taken an oath or made an affirmation
under clause 3—
as Acting Public Advocate during the temporary
absence of the Public Advocate.
(1B) A person appointed under subclause (1A) is not
required to take another oath or make another
affirmation under clause 3.
Sch. 3
cl. 2(1B)
inserted by
No. 3/2006
s. 23.
(1C) The Attorney-General may at any time revoke an
appointment under subclause (1A).
Sch. 3
cl. 2(1C)
inserted by
No. 3/2006
s. 23.
(2) The Acting Public Advocate while so acting—
(a) has all the powers and duties and may
exercise any of the functions of the Public
Advocate; and
143
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 3
(b) is entitled to be paid—
(i) such remuneration as is from time to
time fixed by the Governor in Council;
and
(ii) such travelling and other allowances as
are from time to time fixed by the
Governor in Council; and
Sch. 3
cl. 2(2)(c)
amended by
No. 46/1998
s. 7(Sch. 1),
substituted by
No. 108/2004
s. 117(1)(Sch.
3 item 92.3)
(as amended
by No.
20/2005
s. 50(3)).
(c) is not in respect of the office of Acting
Public Advocate subject to the Public
Administration Act 2004 (other than Part 5
of that Act).
3 Oath or affirmation
The Public Advocate and any Acting Public
Advocate must before taking office take an oath
or make an affirmation to be administered by the
Speaker of the Legislative Assembly that—
(a) she or he will faithfully and impartially
perform the duties of office; and
(b) she or he will not except in accordance with
this Act divulge information received or
obtained under this Act.
__________________
144
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 4
SCHEDULE 4
INSTRUMENTS RELATING TO ENDURING GUARDIAN
FORM 1
APPOINTMENT OF ENDURING GUARDIAN
1. I (insert name, address and occupation of appointor), appoint (insert
name, address and occupation of proposed guardian) to be my guardian.
2. I authorise my guardian if, and only to the extent that, I subsequently
become unable by reason of a disability to make reasonable judgments in
respect of any matters relating to my person or circumstances, to exercise
the powers of a guardian under section 24 of the Guardianship and
Administration Act 1986, being all the powers that a parent may
exercise in respect of his or her child, including—
 to decide where I am to live, whether permanently or temporarily;
 to decide with whom I am to live;
 to decide whether I should or should not be permitted to work and, if
so—
 the nature or type of work; and
 for whom I am to work; and
 matters related thereto; and
 to consent to any health care that is in my best interests;
 to restrict visitors to such extent as may be necessary in my best
interests and to prohibit visits by any person if my guardian
reasonably believes that visits by that person would have an adverse
effect on me.
(Delete any powers you do not wish your guardian to exercise. If you do
not delete any powers, you will be deemed to have authorised your
guardian to exercise the full powers of a guardian under section 24 of the
Guardianship and Administration Act 1986.)
but subject to the following limitations:
(List any limitations you wish to place on your guardian's powers)
3. I require my guardian to take into account the following wishes in
exercising, or in relation to the exercise of, the powers conferred by this
appointment—
(State wishes to be taken into account)
145
Sch. 4
inserted by
No. 40/1999
s. 25.
Sch. 4 Form 1
amended by
Nos 78/2000
s. 10(2)(a)
(i)–(iv),
41/2002
s. 28(1)(a)–(c),
3/2006 s. 24.
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 4
4. (If applicable:) I appoint (insert name, address and occupation of
proposed alternative guardian) to be my alternative guardian in place of,
and with the same powers as, my guardian appointed under paragraph 1 if
that person is incapable of acting as my guardian or is absent for a period.
This is an appointment of an enduring guardian made under Division 5A of
Part 4 of the Guardianship and Administration Act 1986.
........................................
(Signature of appointor)
...............
(date)
CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at least 2 witnesses)
certify—
(a) that the appointor has signed this instrument freely and voluntarily in
our presence; and
(b) that the appointor appeared to understand the effect of this instrument.
........................................................
(Signature of witness authorised to witness the signing
of statutory declarations)
...........
(date)
.........................................................
(Signature of other witness)
...........
(date)
Note: An enduring guardian will be able to make decisions on your behalf on
all health care and lifestyle matters you empower your enduring guardian to
make. If you give your enduring guardian power to make decisions about
your health care, your enduring guardian will be able to consent or withhold
consent to medical or dental treatment on your behalf.
If your enduring guardian withholds consent to proposed medical or dental
treatment, a practitioner may only provide the treatment if the practitioner
believes on reasonable grounds that it is in your best interests to do so and if
the practitioner gives your enduring guardian the opportunity to refer the
matter to the Victorian Civil and Administrative Tribunal (the Tribunal) for
determination.
If you wish to appoint a person who can, unless the Tribunal otherwise
determines, refuse medical treatment on your behalf, you will need to appoint
a person as your agent under the Medical Treatment Act 1988.
146
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 4
If you are considering appointing an agent under the Medical Treatment Act
1988—
 you should ensure that you understand the rights and powers which an
appointment under the Medical Treatment Act 1988 confers on your
agent; and
 you may wish to appoint the same person as your agent under the
Medical Treatment Act 1988 as the person you appoint as your
enduring guardian, although you may choose a different person for each
role; and
If you appoint or have already appointed a person as your agent under the
Medical Treatment Act 1988 and another person as your enduring
guardian—
 the decision of your agent under the Medical Treatment Act 1988 will
have priority over the decision of your enduring guardian in relation to
any proposed medical treatment; and
 your agent under the Medical Treatment Act 1988 will be able to
refuse to consent to medical treatment on your behalf in all
circumstances regardless of any consent to the treatment that your
enduring guardian may give or wish to give.
ACCEPTANCE OF APPOINTMENT
I, (insert name, address and occupation of proposed guardian) accept
appointment as a guardian under this instrument and undertake to exercise the
powers conferred honestly and in accordance with the provisions of the
Guardianship and Administration Act 1986.
..................................................
(Signature of proposed guardian)
...............
(date)
CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at least 2 witnesses)
certify—
(a) that the proposed guardian has signed this instrument freely and
voluntarily in our presence; and
147
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 4
(b) that the proposed guardian appeared to understand the effect of this
instrument.
........................................................
(Signature of witness authorised to witness the signing
of statutory declarations)
...........
(date)
.........................................................
(Signature of other witness)
...........
(date)
(If applicable:) I, (insert name, address and occupation of proposed
alternative guardian) accept appointment as an alternative guardian under this
instrument and undertake to exercise the powers conferred honestly and in
accordance with the provisions of the Guardianship and Administration
Act 1986.
......................................................
(Signature of proposed alternative guardian)
...............
(date)
CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at least 2 witnesses)
certify—
(a) that the proposed alternative guardian has signed this instrument freely
and voluntarily in our presence; and
(b) that the proposed alternative guardian appeared to understand the effect
of this instrument.
........................................................
(Signature of witness authorised to witness the signing
of statutory declarations)
...........
(date)
.........................................................
(Signature of other witness)
...........
(date)
__________________
148
Guardianship and Administration Act 1986
No. 58 of 1986
Sch. 4
FORM 2
REVOCATION OF APPOINTMENT OF ENDURING GUARDIAN
1. I (insert name, address and occupation of appointor), revoke the
appointment of (insert name, address and occupation of proposed
guardian or alternative guardian) as my (insert guardian or alternative
guardian, as applicable).
2. This revocation of appointment as an (insert enduring guardian or
alternative enduring guardian, as applicable) is made under Division 5A
of Part 4 of the Guardianship and Administration Act 1986.
................................................
(Signature of appointor)
...........
(date)
CERTIFICATE OF WITNESSES
We (insert names, addresses and occupations of at least 2 witnesses)
certify—
(a) that the appointor has signed this instrument freely and voluntarily in
our presence; and
(b) that the appointor appeared to understand the effect of this instrument.
........................................................
(Signature of witness authorised to witness the signing
of statutory declarations)
...........
(date)
.........................................................
(Signature of other witness)
...........
(date)
═══════════════
149
Sch. 4 Form 2
amended by
Nos 78/2000
s. 10(2)(b)(i)
(ii), 41/2002
s. 28(2).
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
ENDNOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 28 November 1985
Legislative Council: 22 April 1986
The long title for the Bill for this Act was "A Bill to provide for the
establishment of a Guardianship and Administration Board, to provide for the
appointment of a Public Advocate, to amend the Public Trustee Act 1958
and for other purposes.".
The Guardianship and Administration Board Act 1986 was assented to on
3 June 1986 and came into operation as follows:
Section 14 on 8 July 1986: Government Gazette 25 June 1986 page 2179;
Part 1, sections 5, 6, 15–18, 75–82, Schedules 1 and 3 on 1 April 1987:
Government Gazette 25 March 1987 page 695; section 58 on 1 April 1987:
Government Gazette 1 April 1987 page 778; rest of Act on 14 July 1987:
Government Gazette 8 July 1987 page 1792.
The name of this Act was changed from the Guardianship and
Administration Board Act 1986 to the Guardianship and Administration
Act 1986 by Act No. 52/1998 section 115.
150
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
2. Table of Amendments
This Version incorporates amendments made to the Guardianship and
Administration Act 1986 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Supreme Court Act 1986, No. 110/1986
Assent Date:
16.12.86
Commencement Date:
1.1.87: s. 2
Current State:
All of Act in operation
State Trust Corporation of Victoria Act 1987, No. 55/1987
Assent Date:
20.10.87
Commencement Date:
2.11.87: Government Gazette 28.10.87 p. 2925
Current State:
All of Act in operation
Intellectually Disabled Persons' Services (Amendment) Act 1987, No. 74/1987
Assent Date:
24.11.87
Commencement Date:
24.11.87: Special Gazette (No. 50) 24.11.87 p. 1
Current State:
All of Act in operation
Health Services Act 1988, No. 49/1988
Assent Date:
24.5.88
Commencement Date:
S. 199 on 1.7.88: Government Gazette 29.6.88 p. 1896
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Guardianship and Administration Board (Amendment) Act 1989, No. 33/1989
Assent Date:
6.6.89
Commencement Date:
6.6.89: s. 2
Current State:
All of Act in operation
Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989
Assent Date:
14.6.98
Commencement Date:
S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette
30.8.89 p. 2210; rest of Act on 1.9.90: Government
Gazette 25.7.90 p. 2217
Current State:
All of Act in operation
Medical Practice Act 1994, No. 23/1994
Assent Date:
17.5.94
Commencement Date:
Ss 1, 2 on 17.5.94: s. 2(1); rest of Act on 1.7.94:
Government Gazette 23.6.94 p. 1672
Current State:
All of Act in operation
Financial Management (Consequential Amendments) Act 1994, No. 31/1994
Assent Date:
31.5.94
Commencement Date:
S. 4(Sch. 2 item 39) on 1.1.95: Government Gazette
28.7.94 p. 2055
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
151
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
State Trustees (State Owned Company) Act 1994, No. 45/1994
Assent Date:
7.6.94
Commencement Date:
Pt 1 (ss 1–3), s. 27 on 7.6.94: s. 2(1); rest of Act on
1.7.94: Special Gazette (No. 36) 23.6.94 p. 1
Current State:
All of Act in operation
Equal Opportunity Act 1995, No. 42/1995
Assent Date:
14.6.95
Commencement Date:
S. 224 on 5.10.95: Government Gazette 28.9.95
p. 2731; Sch. 2 items 20.1, 20.2, s. 223(Sch. 1 item 2)
on 1.1.96: Government Gazette 21.12.95 p. 3571
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Trustee and Trustee Companies (Amendment) Act 1995, No. 104/1995
Assent Date:
5.12.95
Commencement Date:
1.1.96: s. 2
Current State:
All of Act in operation
Legal Practice Act 1996, No. 35/1996
Assent Date:
6.11.96
Commencement Date:
S. 453(Sch. 1 item 37) on 1.1.97: s. 2(3)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998
Assent Date:
26.5.98
Commencement Date:
S. 7(Sch. 1) on 1.7.98: s.2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998,
No. 52/1998
Assent Date:
2.6.98
Commencement Date:
Ss 114–129 on 1.7.98: Government Gazette 18.6.98
p. 1512
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Guardianship and Administration (Amendment) Act 1999, No. 40/1999
Assent Date:
8.6.99
Commencement Date:
Pt 1 (ss 1, 2) on 8.6.99: s. 2(1); rest of Act on 1.1.00:
s. 2(3)
Current State:
All of Act in operation
152
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000,
No. 78/2000
Assent Date:
28.11.00
Commencement Date:
Ss 6–10 on 28.11.00: s. 2(1)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001,
No. 11/2001
Assent Date:
8.5.01
Commencement Date:
S. 3(Sch. item 33) on 1.6.01: s. 2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Statute Law Amendment (Relationships) Act 2001, No. 27/2001
Assent Date:
12.6.01
Commencement Date:
S. 9(Sch. 7 item 2) on 28.6.01: Government Gazette
28.6.01 p. 1428
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Community Visitors Legislation (Miscellaneous Amendments) Act 2001,
No. 51/2001
Assent Date:
25.9.01
Commencement Date:
S. 5 on 1.2.02: s. 2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Guardianship and Administration (Amendment) Act 2002, No. 41/2002
Assent Date:
17.9.02
Commencement Date:
Ss 3–28 on 1.1.03: s. 2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Instruments (Enduring Powers of Attorney) Act 2003, No. 75/2003
Assent Date:
21.10.03
Commencement Date:
S. 8 on 1.4.04: Government Gazette 19.2.04 p. 333
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Public Administration Act 2004, No. 108/2004 (as amended by No. 20/2005)
Assent Date:
21.12.04
Commencement Date:
S. 117(1)(Sch. 3 item 92) on 5.4.05: Government
Gazette 31.3.05 p. 602
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
153
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
Health Professions Registration Act 2005, No. 97/2005
Assent Date:
7.12.05
Commencement Date:
S. 182(Sch. 4 item 23) on 1.7.07: s. 2(3)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Guardianship and Administration (Further Amendment) Act 2006, No. 3/2006
Assent Date:
7.3.06
Commencement Date:
Ss 4–11, 13–24 on 15.7.06: Government Gazette
6.7.06 p. 1391
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Disability Act 2006, No. 23/2006
Assent Date:
16.5.06
Commencement Date:
S. 240 on 1.7.07: s. 2(3)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Relationships Act 2008, No. 12/2008
Assent Date:
15.4.08
Commencement Date:
S. 73(1)(Sch. 1 item 27) on 1.12.08: s. 2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Statute Law Amendment (National Health Practitioner Regulation) Act 2010,
No. 13/2010
Assent Date:
30.3.10
Commencement Date:
S. 51(Sch. item 26) on 1.7.10: s. 2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Equal Opportunity Act 2010, No. 16/2010
Assent Date:
27.4.10
Commencement Date:
S. 209(Sch. item 2) on 1.8.11: s. 2(4)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Trustee Companies Legislation Amendment Act 2010, No. 17/2010
Assent Date:
11.5.10
Commencement Date:
S. 19 on 11.5.10: Special Gazette (No. 171) 11.5.10
p. 1
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
154
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
Supported Residential Services (Private Proprietors) Act 2010, No. 49/2010
Assent Date:
24.8.10
Commencement Date:
S. 229 on 1.7.12: s. 2(2)
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
Justice Legislation Further Amendment Act 2010, No. 64/2010
Assent Date:
28.9.10
Commencement Date:
Ss 29–32 on 28.10.10: Government Gazette 21.10.10
p. 2530
Current State:
This information relates only to the provision/s
amending the Guardianship and Administration
Act 1986
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
155
Guardianship and Administration Act 1986
No. 58 of 1986
Endnotes
3. Explanatory Details
1
S. 20(d): Section 72 of the Victorian Civil and Administrative Tribunal
Act 1998 provides that the applicant must give notice to the other parties as
well as to other persons entitled to notice.
156